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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.