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In Landmark Case, NLRB will let More Workers Bargain with their Employer's Employer

A federal labor board voted Thursday to redefine the employee-employer relationship granting new bargaining powers to workers caught up in an economy increasingly reliant on subcontractors, franchisees and temporary staffing agencies.

The case concerned a recycling company called Browning-Ferris Industries in Milpitas, Calif., which used a temporary staffing agency called Leadpoint to provide workers. A Teamsters local tried to organize the employees, but did notjust want to negotiate with Leadpoint — it wanted Browning-Ferris to qualify as a “joint employer,” figuring that bargaining wouldn’t be effective unless it also included the larger company that determines the conditions of the working environment.

A regional director disagreed, and the Teamsters appealed. This time, the NLRB’s general counsel sided with the union, recommending in an amicus brief that the board ignore a standard in place since the 1980s and instead apply a broader definition of what it means to be an employer.

The Board’s Democratic majority agreed and struck down earlier cases that had articulated the previous standard, saying that the growth of the contingent workforce has rendered the definition out of step with the core purposes of the National Labor Relations Act. In doing so, it returned to an even earlier standard, the abandonment of which fostered the growth of independent contractor relationships in industries like trucking and taxis.

The Board also reversed the regional director’s decision, saying that Browning-Ferris exercised sufficient control over hiring, firing, discipline, supervision, and work hours to qualify as a joint employer under the new standard. It ordered that ballots imponded after the Teamsters’ election in April 2014 be counted, which — if the union wins — would allow it to bargain directly with the recycling company as well as the staffing agency that hired them.

This may not be the end of the matter, however. Browning-Ferris Industries has the option to appeal to either the 9th Circuit or the D.C. Circuit Court. “We are currently evaluating all of our available options regarding this matter with the objective of not being unlawfully forced into collective bargaining negotiations with another employer’s employees,” said Darcie Brossart, a spokeswoman for Republic Services, the waste company that owns Browning-Ferris.

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