HY-BRAND INDUSTRIAL CONTRACTORS, LTD AND BRANDT CONSTRUCTION, CO., SINGLE EMPLOYERS AND/OR JOINT EMP

National Labor Relations Board - Board Decisions

Feb 26, 2018

366 NLRB No. 26 (N.L.R.B. 2018)

366 NLRB No. 26
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hy-Brand Industrial Contractors, Ltd. and Brandt
Construction Co., as a single employer and/or
joint employers and Dakota Upshaw and David
Newcomb and Ron Senteras and Austin
Hovendon and Nicole Pinnick. Cases 25–CA–
163189, 25–CA–163208, 25–CA–163297, 25–CA–
163317, 25–CA–163373, 25–CA–163376, 25–CA–
163398, 25–CA–163414, 25–CA–164941, and 25–
CA–164945
February 26, 2018
ORDER VACATING DECISION AND ORDER AND
GRANTING MOTION FOR RECONSIDERATION
IN PART
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On December 14, 2017, the National Labor Relations
Board issued a Decision and Order in this proceeding.
365 NLRB No. 156 (2017). The Board’s Decision and
Order overruled Browning-Ferris Industries of Califor-
nia, Inc. d/b/a BFI Newby Island Recyclery (Browning-
Ferris), 362 NLRB No. 186 (2015), which had estab-
lished a new legal standard for determining whether two
employers are joint employers under the National Labor
Relations Act.
Thereafter, the Charging Parties filed a motion for “re-
consideration, recusal, and to strike,” asking the Board to
reconsider its earlier Decision and Order and seeking the
recusal of Board Member Emanuel. The Respondents
filed an opposition to the motion. The General Counsel
filed a response to the motion, taking no position.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

1 On February 9, 2018, the Board’s Inspector General issued a re-
port concerning Member Emanuel’s participation in the Board’s De-
cember 14, 2017 Decision and Order, which is posted on the Board’s
website (“OIG Report Regarding Hy-Brand Deliberations” available at
www.nlrb.gov).
2 Member Emanuel took no part in the delegation of authority to the
present panel.
The Board’s Designated Agency Ethics Official has
determined that Member Emanuel is, and should have
been, disqualified from participating in this proceeding.3
After careful consideration, and exercising the Board’s
authority under Section 102.48(c) of the Board’s Rules
and Regulations and Section 10(d) of the Act, we have
decided to grant the Charging Parties’ motion in part and
to vacate and set aside the Board’s December 14, 2017
Decision and Order.4
Because we vacate the Board’s earlier Decision and
Order, the overruling of the Browning-Ferris decision is
of no force or effect.
ORDER
The Charging Parties’ motion for reconsideration,
recusal, and to strike is granted in part. The Board’s De-
cision and Order of December 14, 2017, reported at 365
NLRB No. 156, is vacated and set aside for the purpose
of further proceedings before the Board.
Dated, Washington, D.C. February 26, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 5 C.F.R. § 2635.502(c) gives the Agency’s Designated Agency
Ethics Official authority to “make an independent determination as to
whether a reasonable person with knowledge of the relevant facts
would be likely to question the employee’s impartiality in the matter.”
4 Member Emanuel took no part in the consideration of the present
Order.