As expected, Browning-Ferris Industries has appealed to the United States Court of Appeals (in Washington, D.C.) from the National Labor Relations Board’s ground-breaking decision finding that BFI, as a joint employer of employees that BFI used from Leadpoint Business Services, unlawfully refused to bargain with Teamsters Local 350. BFI’s “Petition for Review” was filed in the District of Columbia Circuit.

On August 27, 2015, the NLRB announced a new, broader standard for determining joint employer status under the National Labor Relations Act, and in the process, found that BFI and Leadpoint were joint employers of the Leadpoint employees. (See our article, Labor Board Sets New Standard for Determining Joint Employer Status). After an election in which the union prevailed, the Board certified the union as the collective bargaining representative of those employees. Disagreeing with the Board’s joint employer determination, BFI refused the union’s request to bargain. The union then filed an unfair labor practice charge alleging BFI’s refusal to bargain was unlawful, and on January 12, 2016, the Board found that BFI and Leadpoint, as joint employers, had violated the Act.

The NLRA does not provide for a direct appeal to a federal appeals court from a Board “representation case” decision (one involving an election). An employer contesting such a decision first must refuse to bargain and thereby be found to have violated the NLRA. The “unfair labor practice” decision may be appealed.

In its “Statement of Issues to be Raised” filed in connection with its appeal on February 26, 2016, BFI contends that the Board’s new joint employer standard is defective for several reasons — because it is contrary to the definition of “employee” established by Congress in the 1947 Taft-Hartley amendments, relies upon “economic realities,” which was prohibited by Congress in the 1947 Taft-Hartley amendments, fails to promote stable collective bargaining relationships as required by the NLRA, and is arbitrary and capricious because it is “hopelessly vague.”

A briefing schedule should be issued shortly. Thereafter, the Court will schedule oral argument. A decision is not anticipated before the fall. We will continue to monitor developments in this important case.

 

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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.