Federal judges tackle joint employer issue

WASHINGTON—Browning-Ferris Industries owns the land and buildings of the Leadpoint recycle center in Milpitas, Calif. Its on-site supervisors often tell workers where to stand to collect the plastics, trash and other materials that come in. And BFI supervisors ponder if the center’s production line should speed up, slow down, or even stop.

But BFI doesn’t pay the workers, and often does not manage routine daily tasks. Leadpoint, the firm at the recycle center, does.

That situation led the National Labor Relations Board (NLRB) to rule that Browning-Ferris and Leadpoint are joint employers. And that landed the board and the firms in court.

Being joint employers means both firms are responsible for worker rights at the recycle center. That includes following labor law when Teamsters Local 350 conducted an organizing drive at Leadpoint, and bargaining with the local, after it won the vote in 2014, 73-17.

That’s what the labor board ruled a year and a half ago, but BFI took the ruling to court, thrusting the whole issue of who is a “joint employer” into the laps of three federal appellate judges in a D.C. Circuit courtroom for a 3-hour hearing on March 9.

What Judges Patricia Millett, Robert Wilkins and Raymond Randolph decide could determine whether another corporate dodge of responsibility for workers’ rights — extensive “joint employer” subcontracting with a lot of oversight by parent firms – continues or not.

The issue is important to workers nationwide. In ruling for the local on Aug. 27, 2015, then-NLRB Chairman Mark Gaston Pearce noted temp agencies alone employ more than 2.87 million workers. Millions more are in other “joint employer” relationships.

Companies often use such dodges to avoid dealing with workers, particularly workers trying to stick up for themselves. Even BFI’s attorney said so.

“Are you talking about deep pockets and employers trying to evade responsibility for unsafe working conditions?” Judge Randolph asked BFI’s attorney, Joshua Ditelberg, at one point. “I would agree,” Ditelberg replied.

All that led the NLRB’s majority to rewrite its rules for deciding who are joint employers, case by case. NLRB contends joint employers, such as BFI and Leadpoint, or McDonald’s headquarters and local franchises, are jointly responsible for obeying – or not obeying – labor law and worker rights. Its vote in the BFI-Leadpoint-Local 350 case was 3-2 on party lines.

And in 2015 the board used the three-way battle between Local 350, BFI and Leadpoint to “refine its standard for determining joint-employer status” and bring it up to date “in the current economic landscape,” the NLRB said in a statement at the time.

“The board looked at all the facts” to decide who actually controls the workers, said pro-worker attorney Craig Becker, speaking for Local 350 and following both BFI’s attorney and the government’s lawyer to the courtroom podium. Becker is a former NLRB member.

“BFI not only had the authority to exercise near-constant oversight over worker performance, but they communicated detailed work practices and showed a preference for which customers” Leadpoint should handle first, he added. “Leadpoint operated under a chain of command” with BFI at the top, Becker told Judge Millett, who led and asked most questions.

BFI also set the production line speed at the recycle center, Becker told Randolph. “If my client,” Local 350, “wants to bargain over that, BFI has to be at the table with Leadpoint.”

But BFI didn’t control everything at Leadpoint. Leadpoint set pay and vacation time “and there was no evidence of sick leave” for its 205 workers, Becker admitted.

“But that’s not the test. The test is control and supervision,” particularly “how fast the workers worked,” Becker said. BFI “didn’t hire Leadpoint to produce a product, but they integrated Leadpoint into their operations,” he told Millett. “And the evidence the board relied on” to establish a joint employer relationship “was BFI talking about terms and conditions of work,” he told Wilkins.

BFI attorney Ditelberg and federal attorney Joel Heller, speaking for the NLRB, spent their time fending off questions from the judges about “indirect control” of the workers.

Heller said the relationship between the two companies was even closer than indirect control, which justified the board calling them joint employers.

“There was ongoing day-to-day monitoring of Leadpoint by BFI. ‘Do that, do that, do that,’ and telling them what technique to use,” Heller said.

Indirect control can include control the joint employer – BFI – doesn’t exercise, Ditelberg told Millett. The board can “consider that but discount it” in deciding joint employer rules, he contended.

“You’re going to have to have more evidence of control, or lack of control, over time,” to make a case for joint employers, Ditelberg said.

Ditelberg ducked another issue: If an unionized joint employer announces it’s going out of business, do both employers have to bargain with the union over the impact and over how to treat the workers?

“This contract” with Local 350 “was terminable at the will” of Leadpoint, Randolph suggested to Ditelberg. “This seems to cut in your favor.”  Replied Ditelberg: “This is also one of the problems with the board’s approach” to the joint employer issue.

Source: PAI