Browning-Ferris Industries of California v. NLRB

Browning-Ferris Industries of California, Inc. (Browning-Ferris) operated a large recycling plant at which it directly employed approximately 60 workers. Browning-Ferris contracted with Leadpoint Business Services (Leadpoint), a staffing agency, to provide the facility with screen cleaners, housekeepers, and sorters. Leadpoint bore significant responsibility for hiring, managing, paying, disciplining, and firing its workers, subject to conditions imposed by Browning-Ferris. In 2013, a local union petitioned to represent the screen cleaners, housekeepers, and sorters as a bargaining unit under the National Labor Relations Act (NLRA). The petition designated Browning-Ferris and Leadpoint as the workers’ joint employers. In considering the petition, the National Labor Relations Board (the board) announced a revised joint-employer test pursuant to which such a relationship existed if: (1) the employers shared a common-law employment relationship with the employees, and (2) the employers possessed sufficient control over the employees’ essential terms and conditions of employment to permit meaningful collective bargaining. The board announced that, rather than requiring a joint employer to both possess and exercise the authority to control employee’s terms and conditions of employment, it would consider the employer’s reserved control as a factor in its analysis. The board also announced that, rather than requiring a statutory employer to exercise its control directly and immediately, it would consider indirect control as a factor. The board ruled that Browning-Ferris and Leadpoint were joint employers because Browning-Ferris had a right to control the employees and that it had exercised that right. The board’s analysis did not distinguish between Browning-Ferris’s control relative to its status as an employer and its control relative to its staffing contract with Leadpoint. Browning-Ferris petitioned the United States Court of Appeals for the District of Columbia Circuit for review.