NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.
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Browning-Ferris Industries of California, Inc. d/b/a
BFI Newby Island Recyclery and FPR-II, LLC
d/b/a Leadpoint Business Services, and Sanitary
Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters. Cases 32–CA–
160759 and 32–RC–109684
July 29, 2020
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This test-of-certification proceeding is before the National Labor Relations Board1 on remand from the United
States Court of Appeals for the District of Columbia Circuit.2 This case follows from the Board’s announcement
in the underlying representation case, Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015) (Browning-Ferris), of a
new joint-employer standard that the Browning-Ferris
majority retroactively applied to conclude that BFI Newby
Island Recyclery (BFI) and Leadpoint Business Services
(Leadpoint) were joint employers of the Leadpoint employees in the petitioned-for unit.3 The court affirmed in
part and reversed in part the Board’s decision and remanded the case with directions to clarify the new standard and how it was applied to the facts of this case. The
court further suggested that the Board should “keep in
mind” that retroactive application of a rearticulated new
test might be inappropriate in the circumstances of this
case. 911 F.3d at 1222. Consistent with this admonition,
we find no need to clarify and refine the joint-employer
standard announced in the Board’s original representation-case decision. Upon careful consideration, we find
that retroactive application of any clarified variant of the
1 Member Emanuel is a member of the panel but did not participate
in this decision on the merits. Accordingly, the Charging Party’s motion
to recuse Member Emanuel is denied as moot, without addressing its
merits.
In New Process Steel v. NLRB, 560 U.S. 674 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a twomember quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 560
U.S. at 688; see also, e.g., NLRB v. New Vista Nursing & Rehabilitation,
870 F.3d 113, 127–128 (3d Cir. 2017); D. R. Horton, Inc., 357 NLRB
2277, 2277 fn. 1 (2012), enfd. in relevant part 737 F.3d 344 (5th Cir.
2013); 1621 Route 22 West Operating Co., 357 NLRB 1866, 1866 fn.1
(2011), enfd. 725 Fed. Appx. 129 (3d Cir. 2018).
2 Browning-Ferris Industries of California, Inc. v. NLRB, 911 F.3d
1195 (D.C. Cir. 2018). Subsequent to the court’s decision, the Board

369 NLRB No. 139

new joint-employer standard in this case would be manifestly unjust. We therefore vacate our prior Decision and
Order in the Section 8(a)(5) test-of-certification proceeding, dismiss the complaint in that case, reopen the underlying representation case, and amend the Certification of
Representative to remove BFI as a joint employer.
I. BACKGROUND
On August 16, 2013, the Acting Regional Director for
Region 32 issued a Decision and Direction of Election
wherein he found that BFI did not jointly employ Leadpoint’s employees and directed an election in the following unit:
All full time and regular part-time employees employed
by FPR-II, LLC, d/b/a Leadpoint Business Services at
the facility located at 1601 Dixon Landing Rd., Milpitas
California; excluding employees currently covered by
collective bargaining agreements, office clerical employees, guards, and supervisors as defined in the Act.
The Union filed a timely request for review of the decision
not to include BFI as a joint employer of the Leadpoint employees. On April 25, 2014, while the request for review was
pending before the Board, the election was held, and the ballots were impounded pending the Board’s ruling.
On August 27, 2015, the Board reversed the Acting Regional Director’s decision. Browning-Ferris, 362 NLRB
at 1599–1619. In so doing, the Board overruled cases
holding that an entity must exercise direct-and-immediate
control over essential terms and conditions of employment
of another entity’s employees in order to be a joint employer under the Act.4 Id. at 1599–1600, 1604, 1606–1614
(emphasis added). In place of the direct-and-immediate
control test, the Board adopted a new two-step test. Id. at
1599–1600, 1613–1614. Under this test, the Board would
first determine “whether there is a common-law employment relationship with the employees in question.” Id. at
1600. Second, “[i]f this common-law employment
notified the parties to this proceeding that it had accepted the court’s remand and invited them to file statements of position. Respondent
Browning-Ferris, the General Counsel, and the Charging Party each filed
a statement of position. The Charging Party also filed a motion to strike
the General Counsel’s statement. The motion is denied. We note that
our conclusion that the new joint-employer standard should not have
been applied to BFI Newby Island Recyclery retroactively is not based
on any of the General Counsel’s arguments challenging the substantive
validity of that standard.
3 The Board has since issued a final rule that reinstated and clarified
the joint-employer standard in place prior to Browning-Ferris. Joint Employer Status Under the National Labor Relations Act, 85 Fed. Reg.
11184 (Feb. 26, 2020). The final rule, which applies only prospectively
from its effective date of April 28, 2020, does not control this proceeding.
4 See, e.g., TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d
894 (3d Cir. 1985); Laerco Transportation, 269 NLRB 324 (1984).

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

relationship exists, the inquiry would then turn to whether
the putative joint employer possesses sufficient control
over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.” Id.
For both parts of the test, the Board substantially redefined
the nature of employer control required to prove joint-employer status, holding that indirect or unexercised contractually reserved control could alone be dispositive. Id. at
1600, 1613–1614. Applying its new joint-employer
standard retroactively to the facts at hand, the Board concluded that BFI and Leadpoint were joint employers of the
petitioned-for employees and directed the Regional Director for Region 32 to open and count the ballots and issue
the appropriate certification.
On September 14, 2015, after the ballots revealed that a
majority of voters had opted for union representation, the
Regional Director issued a Certification of Representative. Consistent with the Board’s decision, the unit description in the Certification of Representative was
amended, postelection, to add BFI as a joint employer:
All full time and regular part-time employees employed
by FPR-II, LLC d/b/a Leadpoint Business Services and
Browning-Ferris Industries of California, Inc. d/b/a
Newby Island Recyclery, joint employers, at the facility
located at 1601 Dixon Landing Road, Milpitas, California; excluding employees currently covered by collective-bargaining agreements, office clerical employees,
guards and supervisors as defined in the Act.
BFI thereafter refused to recognize and bargain with the Union. On January 12, 2016, the Board granted the General
Counsel’s motion for summary judgment, found that the refusal to bargain violated Section 8(a)(5) and (1) of the Act,
and ordered BFI to bargain with the Union. Browning-Ferris
Industries of California, Inc., 363 NLRB No. 95 (2016). BFI
refused to comply with the Board’s Order and filed a petition
for review with the United States Court of Appeals for the
District of Columbia Circuit. The Board filed a cross-application for enforcement.
On December 28, 2018, the court granted BFI’s petition
for review in part, denied the Board’s cross-application for
enforcement, and remanded this proceeding to the Board.
Browning-Ferris Industries of California, 911 F.3d at
1200. Reviewing the Board’s new joint-employer standard, the court agreed with the Board that unexercised reserved control and indirect control can be relevant factors
in determining whether an additional entity is a commonlaw joint employer. However, the court did not address
whether such evidence can have conclusive weight. See
id. at 1209–1213, 1216–1221. Further, the court found
that the Board erred in analyzing whether BFI had indirect
control over Leadpoint’s employees. The court found that

the Board “fail[ed] to distinguish evidence of indirect control that bears on workers’ essential terms and conditions
from evidence that simply documents the routine parameters of company-to-company contracting.” Id. at 1216.
Even if the Board had sufficiently explained its finding
that BFI was a joint employer at common law, the court
added, the Board failed to apply the second step of its
standard, which asks whether the entity has “sufficient
control over employees’ essential terms and conditions of
employment to permit meaningful collective bargaining.”
Id. at 1221–1222 (quoting Browning-Ferris, 362 NLRB at
1600).
The court then addressed the possibility that the Board’s
retroactive application of its new standard to BFI was
manifestly unjust:
Because we conclude that the Board insufficiently explained the scope of the indirect-control element’s operation and how a properly limited test would apply in this
case, it would be premature for us to decide BrowningFerris’s challenge to the Board’s retroactive application
of its test. We do not know whether, under a properly
articulated and cabined test of indirect control, Browning-Ferris will still be found to be a joint employer. In
addition, the lawfulness of the retroactive application of
a new decision cannot be evaluated reliably without
knowing with more precision what that new test is and
how far it departs (or does not) from reasonable, settled
expectations.
Nevertheless, we note that the Board in this case “carefully examined three decades of its precedents,” “concluded that the joint-employer standard they reflected required ‘direct and immediate’ control,” and “[t]hereafter
. . . forthrightly overruled those cases and set forth . . . ‘a
new rule.’” [NLRB v.] CNN America, 865 F.3d [740,]
749–750 [(D.C. Cir. 2017)] (quoting Browning-Ferris,
362 [NLRB at 1600]). In rearticulating its joint-employer test on remand, then, the Board should keep in
mind that while retroactive application may be “appropriate for new applications of [existing] law,” it may be
unwarranted or unjust “when there is a substitution of
new law for old law that was reasonably clear,” and on
which employers may have relied in organizing their
business relationships. Epilepsy Found. of Ne. Ohio v.
NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001) (alteration
in original; internal quotation marks omitted) (quoting
Public Serv. Co. of Colo. v. FERC, 91 F.3d 1478, 1488
(D.C. Cir. 1996)); cf. American Tel. & Tel. Co. v. FCC,
454 F.3d 329, 333–334 (D.C. Cir. 2006) (finding retroactive application “not manifestly unjust” where the
agency’s previous rulings “reflect[ed] a highly fact-

 BROWNING- FERRIS INDUSTRIES OF CALIFORNIA, INC. D/B/A BFI NEWBY ISLAND RECYCLERY

specific, case-by-case style of adjudication” that did not
establish “a clear rule of law exempting” certain conduct).
Id. at 1222. Similarly, Judge Randolph, writing in dissent,
warned about retroactive application: “On remand and in
light of what the Board learned during the rulemaking, the
Board might reconsider that aspect of its decision. Case law
in this circuit . . . strongly suggests that it should.” Id. at 1225.
II. ANALYSIS
In its position statement, BFI first and foremost contends that this case should be dismissed on the basis that
retroactively applying the new joint-employer standard
was inequitable. We find merit in this contention.
The Board majority in the original Browning-Ferris decision offered no more explanation for applying its new
standard retroactively than to state summarily that “[t]he
Board’s established presumption in representation cases
like this one is to apply a new rule retroactively.” 362
NLRB at 1600 (citing UGL-UNICCO Service Co., 357
NLRB 801 (2011)). In UGL-UNICCO, however, the
Board explained that although there is a presumption that
new rules will be applied retroactively, the presumption
“is overcome . . . where retroactivity will have ill effects
that outweigh the mischief of producing a result which is
contrary to a statutory design or to legal and equitable
principles.” 357 NLRB at 808 fn. 28 (quoting Crown Bolt,
Inc., 343 NLRB 776, 779 (2004)) (internal quotation
marks omitted). In light of the court’s expressed concerns,
which we accept as the law of the case, we now reconsider
the retroactivity issue and find that any presumption favoring retroactive application in this case is significantly
outweighed by its potential ill effects.
In determining whether to apply a change in law retroactively, the Board balances any ill effects of retroactivity
against “‘the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.’” SNE Enterprises, 344 NLRB 673, 673 (2005)
(quoting Securities & Exchange Commission v. Chenery
Corp., 332 U.S. 194, 203 (1947)). In other words, the
Board will apply a new rule “to the parties in the case in
which the new rule is announced and to parties in other
cases pending at the time so long as [retroactivity] does
not work a manifest injustice.” Id. (internal quotations
omitted). In determining whether retroactive application
will work a manifest injustice, the Board typically considers the reliance of the parties on preexisting law, the effect
of retroactivity on accomplishment of the purposes of the
Act, and any particular injustice arising from retroactive
application. Id. Here, however, we do not write on a
blank slate. We are guided in our retroactivity analysis by
the court’s decision, which is law of the case. And the

3

court clearly emphasized the centrality of reliance interests to the retroactivity determination, stating that retroactive application “may be unwarranted or unjust when there
is a substitution of new law for old law that was reasonably clear, and on which employers may have relied in organizing their business relationships.” Browning-Ferris
Industries of California, 911 F.3d at 1222 (internal quotation marks omitted).
As the court noted, the Board majority in the underlying
representation case decision acknowledged and expressly
overruled three decades of Board precedent requiring
proof of direct and immediate control by one employer
over another employer’s employees in order to establish a
joint-employer relationship. Absent that showing of direct
and immediate control, proof of indirect and/or unexercised reserved control, regardless of the nature of such
control or to what terms and conditions of employment it
applied, would not warrant finding a joint-employer relationship for purposes of the National Labor Relations Act
under pre–Browning-Ferris precedent.
In other words, for at least 30 years preceding the
Board’s 2015 decision in the underlying representation
case, there was a clear rule of law requiring proof of direct
and immediate control under the applicable joint-employer test. It is reasonable to assume that parties would
rely on this law when organizing their business relationships. Indeed, numerous comments filed in our recent
joint-employer rulemaking proceeding made abundantly
clear that many businesses did rely on that legal standard
and that the new standard adopted in the 2015 decision
would substantially affect reasonable, settled expectations
for relationships established on the basis of the prior standard.
Although the court’s remand sought clarification and redress of two critical shortcomings in the Board’s discussion of its new joint-employer standard, we find there is
no variation or explanation of that standard that would not
incorporate its substantial departure from the prior direct
and immediate control legal standard. Retroactive application of that new standard would mean that entities such
as BFI would be suddenly confronted with the new reality
that preexisting business relationships with other entities,
such as Leadpoint—relationships formed in reliance on a
decades-old direct-and-immediate-control standard for
determining joint-employer status—thrust upon them unanticipated and unintended duties and liabilities under the
Act. In accord with the legal principles cited by the court
in its remand opinion, such a change represents a substitution of “new law for old law that was reasonably clear.”
911 F.3d at 1222 (internal citations omitted). As such, it
would be manifestly unjust to fail to give BFI and

 4

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

similarly affected businesses reasonable warning before
imposing such significant new duties and liabilities.
Also counseling against retroactive application of the
Browning-Ferris standard in this case is the fact that the
election was held, and the employees voted, on the basis
that Leadpoint was the sole employer, not BFI and Leadpoint as joint employers. The Board has refused to give
effect to election results where the election was held on
the premise that a joint-employer relationship existed, and
the Board later reversed that finding. H&W Motor Express, 271 NLRB 466 (1984) (“As the employees herein
cast their ballots based on the Regional Director’s finding
that a joint employer relationship existed, we direct that
the impounded ballots be discarded and that a new election be conducted should the Petitioner desire to proceed
to an election.”). Here, the reverse situation exists, but the
principles stated in H&W Motor Express militate against
retroactivity all the same with respect to imposition of a
bargaining obligation on BFI when the employees here
cast their ballots on the assumption that a joint-employer
relationship did not exist.
Accordingly, we conclude that the new joint-employer
test announced in the underlying representation case
should not have been applied in this litigation to determine
whether BFI was a joint employer. The joint-employer
issue must be resolved under the prior longstanding standard requiring proof of direct and immediate control. The
Acting Regional Director applied that standard in his Decision and Direction of Election and found that BFI was
not a joint employer of Leadpoint’s employees. As the
dissenting opinion in the subsequent Board case noted,
“the majority does not argue that the Regional Director
erred in making this finding.” 362 NLRB at 1634 fn. 60.
We agree and now affirm the Acting Regional Director’s
finding that BFI is not a joint employer as dispositive of
the joint-employer issue in the present unfair labor

practice case. Based on that finding, BFI did not violate
Section 8(a)(5) by refusing to bargain with the Union. We
will vacate the prior Decision and Order and dismiss the
complaint in that proceeding. We will also reopen Case
32–RC–109684 for the limited purpose of amending the
Certification of Representative to remove BFI as a joint
employer, which restores the unit description to the language in place at the time that the employees voted.
ORDER
IT IS ORDERED that the Board’s prior Decision and Order
in Case 32–CA–160759, reported at 363 NLRB No. 95, is
vacated and the complaint is dismissed.
IT IS FURTHER ORDERED that Case 32–RC–109684 is reopened and the Certification of Representative issued on
September 14, 2015, is amended as follows:
UNIT: All full time and regular part-time employees
employed by FPR-II, LLC, d/b/a Leadpoint Business
Services at the facility located at 1601 Dixon Landing
Rd., Milpitas California; excluding employees currently
covered by collective bargaining agreements, office
clerical employees, guards, and supervisors as defined in
the Act.
Dated, Washington, D.C. July 29, 2020
______________________________________
John F. Ring,
Chairman
_____________________________________
Marvin E. Kaplan,
Member
(SEAL)

NATIONAL LABOR RELATIONS BOARD