Labor and Union Issues

By Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members. Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”). The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union. Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.

However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns. There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.

Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union. The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists. A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading →

By Kara M. Maciel, Chair of Conn Maciel Carey’s Labor • Employment Practice and Eric J. Conn, Chair of Conn Maciel Carey’s OSHA Practice

The Browning-Ferris Decision

On August 27, 2015, the National Labor Relations Board (“the Board”) “refined” its standard for determining joint-employer status pursuant to its decision in the Browning-Ferris Industries case. In a 3-2 party-line decision, the NLRB reversed an August 2014 ruling that found Leadpoint Business Services Inc. to be the sole employer of the workers at the BFI recycling facility where the local Teamsters union attempted to organize. As part of its reversal, the Board announced a new joint-employer standard that is significantly broader and more inclusive than the standard the Board has upheld for the past 30 years.

In its “restatement” of the legal standard, the Board explained that it may find two or more entities are joint employers if:

They are both employers within the meaning of the common law; and
They share or co-determine those matters governing the essential terms and conditions of employment.

In evaluating the control an entity has over essential terms and conditions of employment, the Board will assess the actual exercise of direct and/or indirect control, as well as determine whether such control has been reserved by the entity in question. To make this determination, the Board will consider, for example, whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary or whether it has reserved the authority to exercise such indirect influence. The Board also took an inclusive approach in defining the terms and conditions of employment to mean dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; assigning work; and determining the method and manner of work among other considerations related to hiring, firing, supervision, and wages/hours.

Under its new standard, the Board determined that BFI was a joint employer with Leadpoint because BFI possessed direct and indirect control over essential terms and conditions of employment of the workers supplied by Leadpoint. It also determined that BFI reserved authority to control such terms and conditions, which added additional support to its finding in favor of joint employer status.

Application of the Browning-Ferris Decision

This new standard adopts more of a “totality of the circumstances” approach, requiring “a full assessment of the facts” in each case. The dissenting Board members criticized such an approach, pointing out that it provides little to no predictability or certainty in who would be considered a joint-employer, and could potentially allow the most tangential evidence to suffice to support joint-employer status. The majority, however, responded that a definitive formula is not appropriate for this type of evaluation and that a full assessment of the facts and incidents should prevent a finding of joint-employer status where there is only tenuous indications of control in a relationship. In its explanation of how the standard will be employed, the majority made clear that a finding of joint-employer status will be a very fact-specific assessment and require a case-by-case analysis of the level of control asserted by the putative joint-employer.

Although the majority claims that this new standard is simply a “return to the traditional test used by the Board,” in actuality this standard is completely different from prior iterations and will significantly expand coverage of the joint-employer relationship through consideration of