The NLRB’s landmark Browning-Ferris Industries of California, Inc. decision, creating a new joint employer standard, has taken another step toward judicial review in a U.S. Circuit Court of Appeals.
On August 27, 2015, the Board found that Browning-Ferris and Leadpoint Business Services were joint employers of certain workers that BFI subcontracted from Leadpoint. After an election in which the union prevailed, the Board certified the Teamsters Union as the exclusive collective bargaining representative of those workers on September 14, 2015.
The National Labor Relations Act does not provide for a direct appeal to a federal appeals court from a Board “representation case” decision (one involving an election). An employer wishing to appeal such a decision first must refuse to bargain with the union as a result of the representation case determination and thereby be found to have violated the NLRA. Then, it may appeal that decision to a court.
Within two weeks of the certification, BFI refused the union’s request to bargain. BFI reasserted that it was not a joint employer with Leadpoint under the National Labor Relations Act. The union 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. This decision sets the stage for BFI’s appeal to a circuit court, which likely will be filed in the next few days.