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The Browning-Ferris Wheel Keeps Turning

By Jill M. Borgonzi

On August 31, 2015, we reported  that the National Labor Relation Board’s August, 2015 decision in Browning-Ferris Industries of California Inc., established a new test to determine joint-employer status under the National Labor Relations Act.  The new test created in Browning-Ferris marked a significant change to well established law in the area of joint-employer law.  Now, the parties at the center of the landmark decision are back at it.  Specifically, the union filed an unfair labor practice charge against employer’s successor within a month of being certified as the bargaining representative of the joint employers’ employees.   The union claims the company refused to bargain. The unfair labor practice charge is currently being investigated by a National Labor Relations Board Regional Director who will decide whether the charge has merit.  Most significantly, the unfair labor practice may set up the current joint-employer standard for review by the United States Court of Appeals. 

The backlash of the Browning-Ferris opinion did not stop there. On September 28, 2015, Senator Mike Lee (R-Utah) introduced the Protecting American Jobs Act in the Senate, challenging the authority of the National Labor Relations Board and seeking to transfer prosecutorial and adjudicative authority over labor disputes from the Board to federal courts.  Essentially, the Act proposes to strip the Board of authority to do anything but conduct investigations. In Senator Lee’s press release regarding this Act, he explained “For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country.” He further opined “The havoc they have wrought by upsetting decades of established labor law has cost countless jobs. This common sense legislation would finally restore fairness and accountability to our nation’s labor laws.” 

The controversial Browning-Ferris decision will continue to produce further important developments in the labor world.  Please stay tuned.