As expected, Browning-Ferris Industries has appealed to the United States Court of Appeals (in Washington, D.C.) from the National Labor Relations Board’s ground-breaking decision finding that BFI, as a joint employer of employees that BFI used from Leadpoint Business Services, unlawfully refused to bargain with Teamsters Local 350. BFI’s “Petition for Review” was filed in the District of Columbia Circuit.

On August 27, 2015, the NLRB announced a new, broader standard for determining joint employer status under the National Labor Relations Act, and in the process, found that BFI and Leadpoint were joint employers of the Leadpoint employees. (See our article, Labor Board Sets New Standard for Determining Joint Employer Status). After an election in which the union prevailed, the Board certified the union as the collective bargaining representative of those employees. Disagreeing with the Board’s joint employer determination, BFI refused the union’s request to bargain. The union then filed an unfair labor practice charge alleging BFI’s refusal to bargain was unlawful, and on January 12, 2016, the Board found that BFI and Leadpoint, as joint employers, had violated the Act.

The NLRA does not provide for a direct appeal to a federal appeals court from a Board “representation case” decision (one involving an election). An employer contesting such a decision first must refuse to bargain and thereby be found to have violated the NLRA. The “unfair labor practice” decision may be appealed.

In its “Statement of Issues to be Raised” filed in connection with its appeal on February 26, 2016, BFI contends that the Board’s new joint employer standard is defective for several reasons — because it is contrary to the definition of “employee” established by Congress in the 1947 Taft-Hartley amendments, relies upon “economic realities,” which was prohibited by Congress in the 1947 Taft-Hartley amendments, fails to promote stable collective bargaining relationships as required by the NLRA, and is arbitrary and capricious because it is “hopelessly vague.”

A briefing schedule should be issued shortly. Thereafter, the Court will schedule oral argument. A decision is not anticipated before the fall. We will continue to monitor developments in this important case.