Whether the National Labor Relations Board’s recently articulated joint employer standard can withstand judicial scrutiny is about to be tested. Browning Ferris Industries of California has filed a petition for review (in the United States Court of Appeals for the District of Columbia Circuit) of the NLRB’s bargaining order, asking the Court to deny enforcement of the Board’s Order requiring the company to bargain with the union based on an election conducted pursuant to the agency’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). That decision significantly eased the requirements for showing joint employer status, and is often cited as allowing unions to leverage their bargaining power by requiring host employers to bargain with unions that have organized a staffing company’s employees who work on the staffing company’s premises.

Meanwhile, the Board is reviewing an NLRB regional director’s decision refusing to find a staffing agency was a joint employer with a host construction contractor in the wake of the Board’s decision in Browning-Ferris. Green JobWorks LLC/ACECO, LLC, is believed to be the first case post-Browning-Ferris to apply the new joint employer standard and the Board’s review is expected to provide greater guidance regarding its intended reach.

As we noted in our post, Union Seeks Labor Board Review of Regional Director’s Adverse Joint Employer Decision, the Regional Director for Region 5 (Baltimore) concluded that the union failed to establish “specific, detailed and relevant evidence” demonstrating a joint employment relationship comparable to BFI. The union then sought review of the decision.

The Board granted the union’s Request for Review, agreeing to revisit the application of Browning-Ferris in the construction industry setting. The parties recently filed their briefs. ACECO, the host contractor employer, argued the Regional Director correctly applied all of the criteria set forth in Browning-Ferris and properly concluded that the facts of this case are significantly different from the facts of BFI. In the alternative, ACECO argued that Browning-Ferris must be overruled as improperly decided.

Conversely, the union argued that the Regional Director’s decision was contrary to Browning-Ferris. Moreover, because the Regional Director ordered an election that named only Green JobWorks as the employer, the union argued it was unable to negotiate with ACECO, a party with material control over the discipline, discharge, transfer, layoff, recall, placement, wages, overtime pay, and even hiring of employees of Green JobWorks. The union concluded that unless the Board reverses the decision, Browning-Ferris will be undone and joint employer determinations “will continue to be based upon microscopic parsing of the degree and routineness of the control exercised or held by putative joint employers.”

A Board decision in Green JobWorks is not expected before fall. We will keep you apprised as the Board provides further guidance on this important issue.

 

 

 

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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.