**Its Back to the Drawing Board on Browning-Ferris…Again**

August 12, 2022August 12, 2022Lindsay A. DiSalvo Leave a comment

As the definition of a joint employer shifts with each change in Administration, so too does the holding of Browning-Ferris – a case that has been fluctuating between the National Labor Relations Board (“NLRB”) and the United States Court of Appeals for the District of Columbia (“D.C. Circuit Court”) for nearly ten years.

Court,Of,Law,And,Justice,Trial,Session:,Imparcial,Honorable,Judge In 2013, the Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (the “Union”) kicked off this almost decade-long controversy by petitioning the NLRB for representation of workers that it asserted were joint employees of Leadpoint Business Services and Browning-Ferris Industries of California, Inc. (“BFI”). Since then, the NLRB and the DC Circuit Court have issued numerous and, more often than not, contradictory rulings, culminating with this most recent decision from the D.C. Circuit Court. Here, the Court challenged the Trump Administration’s NLRB’s reasoning that BFI was not a joint employer using what the NLRB termed “a clear rule of law requiring proof of direct and immediate control” that had been in place “for at least 30 years.” Essentially, the D.C. Circuit Court vacated the NLRB’s ruling because “the [NLRB] made multiple overlapping errors” in its analysis, which the Court asserted failed to support the NLRB’s ultimate decision.

Timeline of the Case

To better understand the D.C. Circuit Court’s most recent decision, below is a timeline of the prior decisions and related action from the NLRB related to the joint employer standard: Continue reading →

Texas Judge Blocks DOL Persuader Rule with Nationwide Permanent Injunction

November 17, 2016Daniel C. Deacon Leave a comment

On November 16, 2016, a Texas federal judge permanently blocked the U.S. Department of Labor (“DOL”) from enforcing its persuader rule in National Federation of Independent Business, et al. v. Thomas E. Perez, et al., Case No. 5:16-CV-066-C. As we previously reported in a prior post, when the DOL published the final rule in March 2016, it imposed substantial reporting obligations on employers. The old rule required disclosure of the use of an outside consultant if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation. The new rule, however, added reporting for indirect persuader activities; for example, providing communication materials to an employer to hand out to employees. These types of activities typically, but not exclusively, arise in the context of a union organizing drive.

The DOL’s insistence on imposing stricter reporting requirements on employers stems from what the DOL perceived as a loophole in the Labor Management Reporting Continue reading →

NLRB Makes It Easier for Employers with Temp Workers to Become Unionized

July 28, 2016Kara Maciel Leave a comment

By: Kara M. Maciel and Lindsay Smith

On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval. Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading →

Deadline Fast Approaching to Report Paid Agreements Under DOL’s “Persuader Rule”

June 27, 2016June 27, 2016Kara Maciel Leave a comment

Department of Labor Update: June 27, 2016

The DOL has been ordered by a federal court not to enforce the Persuader Rule on a national basis after July 1, 2016 because the court was persuaded (sorry for the pun) that the rule would cause irreparable harm to business groups.

Had the final rule not been enjoined, after July 1, 2016, in accordance with the DOL’s Persuader Rule, all employers will be required to report financial agreements with consultants and attorneys retained to give advice that could be viewed as efforts to “persuade” workers on union-related matters.

As we reported when the DOL published the final rule in March 2016, the new rule imposes substantial reporting obligations on employers. The old rule required reporting if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation. The new rule adds reporting for indirect persuader activities; for example, when providing communication materials to employer to hand out to employees. These activities typically, but not exclusively, arise in the context of a union organizing drive. The final rule provided that it applies to “arrangements and agreements as well as payments (including reimbursed expenses) made on or after” July 1.

But, in an important development, the DOL has recently interpreted its new Persuader Rule Continue reading →

NLRB Data Confirms Union Elections Are Happening Twice As Fast under Ambush Election Rules

October 28, 2015October 28, 2015Kara Maciel Leave a comment

What should come as no surprise to any management or labor attorney, the National Labor Relations Board (NLRB) has stated that union elections are taking place twice as fast under the new NLRB Representation Case Rule changes, also known as the “ambush election” rules.

As reported by Politico’s Morning Shift today and according to an NLRB PowerPoint presentation collecting relevant data, the median time between the filing of an election petition and an NLRB-directed election was 32 days, a decrease from 67 days during the same period in 2014. In addition, the median time between the filing of an election petition and the pre-election hearing was 9 days, a decrease from 13 days.

Interestingly, despite the compressed time from petition to election, the unions are not winning elections in higher percentages. According to the NLRB’s data, since April 2015 when the election rule took effect, unions won 68.8 percent of elections, compared to 69 percent during the same period in 2014. The number of petitions filed is also unchanged: 1,446, compared to 1,442.

This begs the question whether the ambush election rules are hurting employers, or whether employers have taken heed and begun preparing for any organizing well before any petition is filed. It also leaves open the question whether labor unions have changed their strategy to file more election petitions in light of the new rules, rather than relying on card check and neutrality agreements as they have for the past several years. In New York City, for example, the Hotel Trades Council filed election petitions at 4 hotels in Manhattan over a few short months this summer, and won each of those elections with a large majority. The bargaining units were relatively small – less than 50 employees at each hotel – and focused primarily on room attendants and housemen.

Despite the NLRB data, in speaking with my contacts and fellow labor attorneys, we are all seeing a significant uptick in representation petitions across all industries and across the country, which means that employers must be prepared to respond to a petition before any organizing campaign can occur. Management training and understanding the rules of the game well in advance could be the game-changer in how elections are won under the new rules.