NLRB Invites Briefs on Whether it Should Follow or Replace its Current Joint-employer Standard | Practical Law

NLRB Invites Briefs on Whether it Should Follow or Replace its Current Joint-employer Standard | Practical Law

The National Labor Relations Board (NLRB) invited amicus briefs in Browning-Ferris Industries of California, Inc. on the question of whether it should follow or replace its current joint-employer standard.

NLRB Invites Briefs on Whether it Should Follow or Replace its Current Joint-employer Standard

by Practical Law Labor & Employment
Published on 20 May 2014 • USA (National/Federal)
The National Labor Relations Board (NLRB) invited amicus briefs in Browning-Ferris Industries of California, Inc. on the question of whether it should follow or replace its current joint-employer standard.
On May 12, 2014, the panel (Board) heading the NLRB's judicial and election functions issued a notice and invitation to file briefs, inviting party and amicus briefs in Browning-Ferris Industries of California, Inc., No. 32-RC-109684 on whether the Board should follow or replace its current joint-employer standard. The Board currently holds that where two separate entities share or codetermine the matters governing essential employment terms and conditions, they are to be considered joint employers under the NLRA. A party asserting that an entity is a joint employer must show that the entity meaningfully affects employment relationship matters, such as:
  • Hiring.
  • Firing.
  • Discipline.
  • Supervision.
  • Direction.
(TLI, Inc., 271 N.L.R.B. 798 (1984), enf'd mem., 772 F.2d 894 (3d Cir. 1985), and Laerco Transp., 269 N.L.R.B. 324 (1984).)
In July 2013, a Teamsters local union petitioned for an election to be certified as the representatives of certain workers that it alleges are jointly employed by Leadpoint Business Services, LLC (Leadpoint) and Browning-Ferris Industries of California, Inc. (BFI). NLRB Region 32 held a hearing to determine whether BFI jointly employed the workers in the petitioned for bargaining unit, who Leadpoint and BFI each asserted were solely Leadpoint's employees.
The regional director for Region 32 analyzed the record facts and applicable Board precedent and found that BFI and Leadpoint are not joint employers of the employees in the petitioned-for bargaining unit. The regional director ordered an election for the petitioned-for bargaining unit of Leadpoint employees. (Browning-Ferris Indus., No. 32-RC-109684 (Aug. 16, 2013).)
The union requested Board review of the decision. Leadpoint and BFI separately opposed that petition.
On April 30, 2014, a three-member Board panel voted 2-1 (Members Hirozawa and Schiffer; Member Johnson, dissenting) to grant the union's request for review, finding that it raised substantial issues warranting review (No. 32-RC-109684, (Apr. 30, 2014)).
The Board's May 12, 2014 notice and invitation to file briefs specifically asked the parties and interested amici to address the following issues related to the disposition of this case:
  • Under the Board's current standard for determining joint-employer status, as set out in TLI, Inc. and Laerco Transportation, is Leadpoint the sole employer of the petitioned-for employees?
  • Should the Board maintain its current joint-employer standard or adopt a new standard, and what considerations should impact the Board's decision?
  • If the Board adopts a new joint-employer standard:
    • what factors should it examine; and
    • what should be the justification for the new standard?
The parties and amici must submit briefs electronically by June 26, 2014 using the NLRB E-Filing System. The parties' briefs should not exceed 50 pages and amici briefs should not exceed 30 pages.