only twice in their 6-plus year relationship;
• Leadpoint employees were obligated to comply with
BFI safety policies, even though BFI never actually enforced any such policies; and
• Even though Leadpoint determined and administered
its employees’ pay rates, maintained all payroll records,
and was solely responsible for providing and administering benefits, BFI had to approve pay increases and
prohibited Leadpoint from paying its workers more
than BFI paid its own workers for the same work.
The NLRB also determined that BFI exercised indirect
control over Leadpoint employees by controlling the
conveyor belt and setting productivity standards, even
though quality and productivity standards were communicated to Leadpoint employees by Leadpoint supervisors.
Nonetheless, the NLRB found that BFI had “near-constant
oversight” and therefore controlled “the processes that
shaped the day-to-day work” for Leadpoint employees.
The NLRB found the two employers to be “joint employers,” and ordered previously impounded union election results to be tallied. The Teamsters won the election
and will now sit at the bargaining table to negotiate with
both BFI and Leadpoint.
The Opinion, Dissent & Potential Impact
The NLRB’s decision in Browning-Ferris Industries –
decided by its three democratic appointees – was fiercely
disputed by the Republican minority in a 30-page dissent,
who argued that the majority imposed a “
never-before-seen” test that extends far beyond the congressional intent of the Act. Unless and until appealed and overruled,
or until Congress steps in, the opinion expands the range
of employers who could find themselves in a putative
“joint” employment relationship.
The dissent contends that the NLRB has replaced a
long-standing, predictable joint employer test with an
ambiguous test that imposes far-reaching and adverse
consequences which will foster bargaining instability,
while imposing joint bargaining obligations on many
It is, of course, premature to determine the accuracy
of these predictions. At a minimum, however, employers
engaged with other businesses in synergistic commercial
relationships (such as user-supplier/temporary staffing,
parent-subsidiary, contractor-subcontractor, franchisor-franchisee relationships) should consider revisiting and
likely revising their contractual relationships, while possibly reevaluating business relationships that may become complicated in the new climate created by the BFI
For readers interested in more on this topic, please contact Fred Mendelsohn at 312/840-7004 or fmendelsohn@
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