The National Labor Relations Board this week issued its decision in Browning Ferris and in doing so redefined and expanded “joint employer” liability under the National Labor Relations Act. Under the joint employer doctrine, one company can be found liable for another company’s unfair labor practices and breaches of collective bargaining agreements.
According to the Coalition for a Democratic Workplace (CWD), for the last 30 years, the NLRB has determined whether two separate entities are joint employers under the act by assessing whether they exert such direct and significant control over the same employees such that they “share or codetermine those matters governing the essential terms and conditions of employment . . . .” Today, the NLRB expanded the standard to include situations where one entity exercises direct or indirect control over the essential terms and conditions of employment of another entity’s employees or has the right to do so (even if they do not exercise that right).
Dissenting Members Miscimarra and Johnson said today’s ruling will “subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have; to potential liability for unfair labor practices and breaches of collective bargaining agreements; and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts and picketing.” This new test leaves employees, unions, and employers in a position where there can be no certainty or predictability regarding the identity of the “employer.””
The CDW is an organization representing over 600 businesses joined by a mutual concern over labor issues. CDW was formed in 2005 in opposition to the Employee Free Choice Act or card check.
