The Board's recent decision in Miller &
Anderson is another significant consequence of
Browning-Ferris and allows unions to form a single
bargaining unit of "user" and "supplier"
employees much more easily than before.
The National Labor Relations Board's (NLRB's or the
Board's) decision in BFI Newby Island Recyclery, 362
NLRB No. 186 (2015) (Browning-Ferris) substantially
changed the standard for determining when a "user"
employer is deemed to be a joint employer of temporary or
contingent workers (as well as the standard for determining joint
employer status in a host of other commercial relationships,
including outside suppliers, franchises, and on-site contractors).
Browning-Ferris jettisoned at least 30 years of Board
precedent and held that joint employer status no longer depends on
direct control by a putative joint employer but instead can be
found based on the mere right to control terms and conditions of
employment, even if that control is indirect
