Browning-Ferris Industries of California, Inc. took its first shot at convincing the U.S. Court of Appeals for the District of Columbia Circuit to reject the National Labor Relations Board’s new joint employer standard and vacate two decisions that obligate the company to bargain with the Teamsters as a joint employer of temporary employees assigned to its facility.

The battle began in July 2013, when the Teamsters petitioned to represent a bargaining unit of sorters, housekeepers, and screen cleaners that were assigned to a Browning-Ferris facility by staffing agency Leadpoint. In the petition, the Teamsters alleged that Browning-Ferris and Leadpoint were joint employers; however, after an evidentiary hearing, an NLRB Regional Director determined that Leadpoint was the sole employer of these employees. The Board granted the union’s request for review and, reversing, adopted a new joint employer standard.

Under the former joint employer standard, which had been in place since 1984, a putative joint employer needed to exercise direct and immediate control over the essential terms and conditions of employment of the employees in question. However, under the Board’s new Browning-Ferris standard, indirect control or even an unexercised right to control also are probative of joint employer status and may be determinative.

Following the Board’s August 27, 2015, decision, an election was held and the Teamsters were certified as the bargaining representative for the petitioned-for unit. After Browning-Ferris refused to bargain with the Teamsters in order to pursue review of the new joint employer standard, on January 12, 2016, the Board issued its Decision and Order finding that Browning-Ferris was a joint employer of the employees and requiring it to recognize and bargain with the Teamsters. On January 20, 2016, Browning-Ferris filed a timely petition for review in the appeals court

In its opening brief, Browning-Ferris argued the Board’s new joint employer standard is defective and unenforceable because: (1) it is contrary to the employment relationships recognized by Congress in the 1947 Taft-Hartley amendments to the NLRA; (2) it relies upon the kind of assessment of “economic realities” prohibited in the Taft-Hartley amendments; (3) it fails to promote stable collective bargaining relationships; and (4) it is arbitrary and capricious because it overturns decades of settled law and imposes a standard so broad and unconstitutionally vague that parties cannot arrange their affairs to achieve predictable legal outcomes. Browning-Ferris also argued that it is not a joint employer of Leadpoint employees under either the old joint employer standard or the new, and that, even if the new joint employer standard survived judicial scrutiny, it was inherently inequitable to apply the new test retroactively.

The waste and recycling company didn’t pull any punches it its opening submission.  The company voiced indignance and frustration with the “[v]irtually boundless scope of the Board’s new joint-employer test.” It also expressed concern the new standard will adversely affect a panoply of bargaining obligations. Moreover, Browning-Ferris took care to point out that, while the Board claimed the new joint employer standard would not address a broad range of relationships (meaning it would apply to some business relationships but not others), the Board is not permitted to do that – to apply a different joint employer standard to some business relationships and not to others.

Briefing will continue through July 28. We will continue to monitor the appeal and report any new developments.

 

 

 

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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.