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Browning Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery | 362 NLRB No. 186 (2015)

In Browning-Ferris Industries, the National Labor Relations Board considered whether to revise the standard for assessing joint-employer status to better achieve the National Labor Relations Act’s goals in the current economic climate.

Browning-Ferris operated the Newby Island Recyclery in California. Browning-Ferris contracted with a staffing agency called Leadpoint to provide the workers who sorted the materials on conveyor belts, along with housekeepers and screen cleaners.

Leadpoint hired these workers, selecting them based on criteria provided by Browning-Ferris, including a requirement that they pass drug tests. Leadpoint had sole responsibility for evaluating, disciplining, and terminating employees. It set pay rates, paid employees, and provided benefits.

Browning-Ferris set shifts and decided when overtime was needed. It told Leadpoint how many workers were needed every day, and Leadpoint would assign employees to shifts. Generally, Browning-Ferris gave directions and corrections to Leadpoint supervisors, but occasionally Browning-Ferris would communicate directly with Leadpoint’s workers. Browning-Ferris also occasionally pointed out incidents that warranted disciplinary action.

The International Brotherhood of Teamsters filed a petition with the National Labor Relations Board seeking to represent a new bargaining unit consisting of workers employed by Leadpoint and Browning-Ferris as joint employers at Newby Island.

The Acting Regional Director decided that Browning-Ferris wasn’t a joint employer on the ground that Browning-Ferris didn’t control the essential terms and conditions of employment.

The union petitioned the National Labor Relations Board for review, asking it to adopt a broader standard for identifying joint employers.

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