By Edwin S. Hopson
On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director's decision in order to determine if the Board's current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.
The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:
- Under the Board's current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
- Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board's decision in this regard?
- If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?
The briefs may be filed on or before June 26, 2014.