Browning-Ferris Industries Of California, Inc. D/B/A Bfi Newby Island Recyclery

362 NLRB No. 186 (2015)

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Nature of the Case

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Facts

D owns and operates the Newby Island recycling facility, which receives approximately 1,200 tons per day of mixed materials, mixed waste, and mixed recyclables. They sort these materials into separate commodities that are sold to other businesses at the end of the recycling process. D employs approximately 60 employees. These employees are part of an existing separate bargaining unit that is represented by P. Inside the facility, workers provided to D by Leadpoint stand on platforms besides the streams and sort through the material as it passes and remove from the stream either recyclable materials or prohibited materials. Other material is automatically sorted when it passes through screens that are positioned near the conveyor belts. D had hiring criteria for any workers Leadpoint provided. Leadpoint had the authority to discipline Leadpoint employees. D had the discretion to reject any Leadpoint workers with or without cause. Leadpoint set wages for its employees, but it could not pay more than D paid one of its employees for similar work. D controlled the timing and length of shifts, and when to permit breaks. Leadpoint assigned its employees to each shift. D controlled the timing and length of shifts, and when to permit breaks. Leadpoint assigned its employees to each shift. D and Leadpoint maintain separate human resource departments. D does not have an HR manager onsite. Leadpoint has an onsite HR manager who operates in a trailer outside the facility. Leadpoint has sole responsibility to counsel, discipline, review, evaluate, and terminate personnel who are assigned to D, It also grants D the authority to “reject any Personnel, and . . . discontinue the use of any personnel for any or no reason.” All the employees use the same parking lot, break rooms and bathrooms. D determines which material streams will run each day and provides Leadpoint with a target headcount of workers needed. D dictates the number of Leadpoint laborers to be assigned to each material stream, but Leadpoint assigns specific Leadpoint employees to specific posts. P filed a petition seeking collectively bargaining claiming that D and Leadpoint were joint employers of the sorters and cleaners, thus permitting union representation.