The National Labor Relations Board, citing “unusual” circumstances, on Thursday asked a Washington federal appeals court to revive its review of the lawfulness of the Obama-era “joint-employment” rules.

The labor board said the U.S. Court of Appeals for the D.C. Circuit should consider the case Browning-Ferris Industries, which challenged the “joint employment” standard the Obama-era board adopted. That new standard, assailed by employers, opened a wider door for companies to be held liable for alleged labor violations by franchisors and contractors.

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The appeals court heard arguments in March last year, but had not issued a ruling by the time Trump appointees comprised a majority on the labor board.

The new Republican majority—which included Trump nominees Marvin Kaplan and William Emanuel, a Littler Mendelson shareholder—used a separate case, called Hy-Brand Industrial Contractors, to overturn the board's decision in Browning-Ferris. The board then asked the D.C. Circuit to return Browning-Ferris to the agency to be considered under the Republican-embraced standard.

The NLRB inspector general in February said Emanuel—whose firm represented a party in Browning-Ferris—should not have voted in Hy-Brand. An agency watchdog report said the vote raised a “serious and flagrant” ethics issue at the agency. The fallout was swift—the NLRB scrapped its vote in Hy-Brand, a move that left questions open about the fate of joint-employment liability.

In rejecting Emanuel's vote in Hy-Brand, the labor board returned to the broad joint-employment standard the Obama-era board set in Browning-Ferris. Many companies and business advocates had criticized the new standard. Microsoft Corp., for instance, said the new standard could push some companies away from setting up corporate social responsibility programs.

Linda Dreeben, deputy associate general counsel at the NLRB, called the facts “unusual” in her request that the D.C. Circuit resume hearing Browning-Ferris.

“The National Labor Relations Board respectfully moves the court to recall mandate and continue processing this case,” Dreeben wrote in court papers. “Board action since the court's remand provides exceptional circumstances for recall of the mandate in this case, which had been fully briefed and argued, but not decided, prior to remand and mandate.”

Dreeben said “the issue as to enforcement of the board's order in Browning-Ferris is exactly as it was prior to the remand.”

The NLRB's ethics turmoil haunted the confirmation hearing of John Ring on Thursday on Capitol Hill. Ring, a Morgan, Lewis & Bockius partner in Washington, said he'd strive to avoid any ethics conflicts if he's confirmed to a seat on the board.

“I do not want to be in the position member Emanuel finds himself in and I don't want to put a cloud over the NLRB,” Ring told members of a U.S. Senate committee.

The NLRB's new motion in Browning-Ferris is posted below:

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