In a previous post, we reported on Browning-Ferris Industries of California Inc., 362 NLRB No. 186 (2015), a landmark National Labor Relations Board decision that established a new “test” for the NLRB to apply when determining joint employer status under the National Labor Relations Act. Browning-Ferris (BFI) operated a waste recycling facility and subcontracted employees from Leadpoint Business Services to sort recyclable items and to perform basic housekeeping functions. The Teamsters filed a petition to represent approximately 240 of the subcontracted employees. A Board-conducted election had already taken place, but the ballots had been impounded pending an NLRB decision on the joint employer issue. Following its decision, the Board counted the ballots. The union won 73-17. Within a month of being certified as bargaining representative of the joint employers’ employees, the Teamsters filed an unfair labor practice charge against BFI’s successor, Republic Services, Inc., claiming the company was refusing to bargain. The unfair labor practice charge is being investigated by an NLRB Regional Director who will decide whether the charge has merit.

Meanwhile, Congress continues to consider legislation aimed at rolling back the Board’s new joint employer standard. The Protecting Local Business Opportunity Act (S.2015/H.3459) was introduced by Senator Lamar Alexander (R-Tenn.) and House Representative John Kline (R-Minn.). The proposed legislation seeks to amend the NLRA by adding a definition of “joint employer” that closely mirrors the Board’s old standard.

The House of Representative’s Education and the Workforce Committee held a hearing on September 29 to consider the bill. Small business owners and a management labor lawyer endorsed the bill’s proposal to overturn the Board’s decision, while two law professors told the subcommittee that Browning-Ferris has been misunderstood or exaggerated. The Senate Health, Education, Labor and Pensions Committee held its own hearing on the new joint employer standard on October 6.

In the meantime, Senator Mike Lee (R-Utah) has introduced a second measure aimed at curtailing the NLRB by challenging its authority. The Protecting American Jobs Act (S. 2084) was introduced in the Senate on September 28 and would transfer prosecutorial and adjudicative authority over labor disputes from the NLRB to federal courts. The bill would leave the Board with only the power to conduct investigations.

Additional developments are anticipated as the Board and Congress continue to react to Browning-Ferris and its effects. Stay tuned for further updates.