Within the past month, the National Labor Relations Board (NLRB) has initiated a shift in its philosophy on what constitutes a joint employer relationship. Until now, the NLRB’s standard for joint-employer status was for an entity to exert actual direct control over essential employment conditions of another entity’s employees, but in Browning-Ferris Industries of California v. NLRB, the organization indicated that an entity could be a joint employer on the basis of indirect and unexercised control. Since joint employers share joint liability and obligations regarding union representation, collective bargaining, and striking or picketing, this decision has considerable implications.
The case came before the NLRB after a union filed an election petition in order to represent the employees of the staffing services agency Leadpoint who worked at a recycling center operated by Browning-Ferris Industries (BFI). Since BFI staffed the center with both Leadpoint and BFI employees, the union named BFI as a joint employer, despite the fact that BFI did not exercise direct control over Leadpoint employees. The NLRB administrative case judge who first heard the case found that BFI was not a joint employer of the recycling center’s Leadpoint employees; however, in the subsequent appeal ruling, the NLRB rewrote its joint employer standard and ruled that BFI was a joint employer on the grounds of its indirect and unexercised control over the Leadpoint employees.
BFI appealed the ruling to the DC Circuit and argued before a panel of three judges–Judge Patricia A. Millet, Judge Robert L. Wilkins, and Judge A. Raymond Randolph–who will issue a final ruling on the case. During oral arguments, the judges directed questions to both representatives of BFI and the NLRB: Judge Millet, for example, questioned whether or not BFI’s instructions to employees that were “launder[ed]” through Leadpoint represented indirect control. She also pressed the NLRB’s attorney on how the organization would apply its new joint-employer standard to collective bargaining. The panel is expected to deliver a final decision after a few months.
There are significant implications to the NLRB’s expanded joint employer standard. First and foremost, if and when unions seek to organize a group of jointly-employed employees, the joint employer is party to the union election process, and these joint employers will also be required included in the secret ballot election and, in the event the union wins, will be part of the collective bargaining process. Joint employers are also subject to pickets, boycotts, or other activities that would otherwise be considered unlawful secondary boycotts.