By
Seth Borden
on July 5, 2016 Posted in Amici Briefs, Joint Employer, NLRB, Unions
All
observers recognized that the National Labor Relations Board’s Browning-Ferris
Industries of California, Inc., 362 NLRB No. 186 (Aug. 27,
2015) decision, overhauling decades of settled
precedent, was going to have significant and far-reaching effects, as it
greatly expanded the scope of relationships in which the Board would find
entities to be “joint employers.” Most commentary has focused on a variety of
business relationships swept up into the decision’s reach: franchise
arrangements, subcontracting arrangements, subsidiary arrangements, etc. Late
last month, however, an amicus filing by Microsoft and the HR Policy
Association highlighted yet another possible consequence: the extent
to which the new BFI standard might disincentivize corporate adoption of
Corporate Social Responsibility (CSR) policies.
CSR
refers broadly to efforts by a corporation to promote social
values and provide resulting benefits to a variety of stakeholders and the
society at large. One prominent approach adopted by participant
companies is a code of obligations and commitments they require of
potential suppliers or vendors before contracting to do business with one
another. Microsoft has been recognized repeatedly as the top “corporate
citizen” by Corporate Responsibility Magazine. In March
of 2015, Microsoft announced, as part of its CSR initiatives, that it would only contract with suppliers that “provide their
employees who handle [Microsoft] work with at least 15 days of paid leave
each year.”
At
the time, a small independent union, the Temporary Workers of America, was engaged in a
labor dispute with a Microsoft supplier, Lionbridge Technologies
over the terms of an initial collective-bargaining agreement for
Lionbridge employees it represented. Frustrated by the employer’s offer on the
table, the union invited a Microsoft executive to join the bargaining.
When Microsoft declined, citing the BFI decision and the PTO
requirement in Microsoft’s CSR policy, the union filed an unfair labor practice
charge against Microsoft for failure to bargain in good faith. That case, NLRB
Case No. 19-CA-162985, remains pending in the Seattle Regional
Office of the Board.
The
Browning-Ferris case, on the other hand, is up on appeal before the United
States Court of Appeals for the District of Columbia Circuit. On June 14,
2016, Microsoft and HRPA filed an amicus brief arguing not only that the
Board’s BFI decision was deeply flawed, but that it would also:
If
so, the law of unintended consequences could well result in companies declining
to institute CSR policies like the Microsoft example at issue here, denying
improved terms and conditions of employment to employees throughout the
economy. We will follow both cases and publish updates as developments
warrant.
More
related resources and coverage:
“Microsoft Joins In Fight Against NLRB ‘Joint Employer’
Standard” – Washington Examiner
“HR Policy Amicus Brief Highlights Impact of NLRB’s New
‘Joint Employer’ Standard on CSR Policies” — HR Policy Association
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