The NLRB issued its landmark decision in Browning-Ferris on August 27, 2015.[1] Browning-Ferris (“BFI”) operated a recycling business that directly employed 60 employees.[2] It also used Leadpoint, a subcontractor, to provide an additional 150 staff members to sort recyclable materials from waste and to clean the facility.[3] Under the services agreement between the two companies, the Leadpoint employees were to be screened, hired, disciplined, and supervised by Leadpoint but allowed BFI to involve itself in hiring, discipline, scheduling, and wages of the employees. Notably, the agreement prevented Leadpoint from paying its employees more than BFI, required Leadpoint applicants to undergo drug testing and prohibited Leadpoint from hiring workers that BFI had already rejected, provided BFI the right to discontinue use of Leadpoint employees, and permitted BFI to control the productivity pave of Leadpoint employees and timing of their shifts.[4]
The Teamsters union sought to represent a mix of Leadpoint and BFI employees as a unit and claimed that BFI and Leadpoint were joint employers of the Leadpoint staff. The regional director of the NLRB issued a decision finding Leadpoint was the sole employer of its staff, finding that BFI did not exert sufficient control over Leadpoint’s workers to make BFI a joint employer. Leadpoint appealed the decision, upon which the General Counsel of the NLRB submitted the June 2014 amicus brief, discussed above.
As way of the procedural history of the case, the union filed the petition in this matter on July 23, 2013.[5] Shortly thereafter, on August 16, 2013, the Regional Director issued its decision, holding that Leadpoint is the sole employer in question.[6] The union, under the NLRB rules, requested a review of the Regional Director’s decision.[7] The review was accepted by the Board, which stated that the Regional Director’s decision raises substantial issues warranting review and invited interested parties to submit amici briefs addressing the issues raised in this matter.[8]
In a 3-2 decision, the Board rejected the regional director’s finding. According to the Board, it was returning to the pre-1984 broader standard of the joint employer doctrine, thereby overturning the post-1984 standard. The Board stated that two or more entities would be joint employers of an employee if: 1) they are both employers within the meaning of the common law, and 2) they share or codetermine those matters governing the essential terms and conditions of employment.[9]
Following the Board’s decision, an NLRB election was held to determine whether the workers would be represented by Teamsters.[10] Teamsters won and was certified as the exclusive bargaining representative of the employees.[11] However, BFI refused to recognize the union and bargain with Teamsters, arguing that it is not an “employer” under the NLRA of the unit employees. Consequently, the General Counsel issued a new complaint on October 23, 2015, alleging that BFI, a joint employer, has violated Section 8(a)(1) and (5) of the NLRA by refusing Teamster’s request to recognize and bargain following its certification.[12] On November 13, 2015, the General Counsel filed a motion for summary judgment, to which BFI, while admitting its refusal to bargain, asserted that it had no obligation to bargain with Teamsters since it is not an “employer” of the unit employees.[13] On January 12, 2016, the Board issued a unanimous decision finding that BFI violated the NLRA and issued a cease-and-desist order.[14] Soon thereafter, on January 20, 2016, BFI petitioned the U.S. Court of Appeals for the District of Columbia for review of the Board’s January 12, 2016 decision. The D.C. Court of Appeals has not yet issued a decision.
[1] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a LeadpointBusiness Services, N.L.R.B. Case 32-RC-109684 (August 27, 2015).
[2] Id. at 1.
[3] Id.
[4] Id. at 17-19.
[5] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-RC-109684 (July 23, 2013).
[6] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-RC-109684 (August 16, 2013).
[7] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-RC-109684 (September 3, 2013).
[8] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-RC-109684 (April 30, 2014).
[9] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-RC-109684 (August 27, 2015), at 15.
[10] Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery & FPR-ll, LLC. d/b/a Leadpoint Business Services, N.L.R.B. Case 32-CA-160759 (January 12, 2016), at 15.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
