April 08, 2026|Franchise Frontlines
April 8, 2026 | National Labor Relations Board | Published Order
Executive Summary
In a published order, the National Labor Relations Board denied Browning-Ferris Industries’ motion for reconsideration following the Board’s earlier determination that the company qualified as a joint employer and was required to bargain with a union representing workers supplied by a staffing company. Browning-Ferris argued that any bargaining obligation should be limited to terms and conditions of employment that it actually controlled. The Board rejected that position, holding that the existence of a duty to bargain as a joint employer is analytically distinct from the scope of subjects over which bargaining may ultimately be required. The Board concluded that Browning-Ferris failed to demonstrate any material error or extraordinary circumstances warranting reconsideration and reaffirmed its prior order requiring the company to recognize and bargain with the union.
Relevant Background
The dispute arises from long-running litigation involving Browning-Ferris Industries (“BFI”) and a staffing agency that supplied workers to its recycling facility. In earlier proceedings, the Board determined that BFI and the staffing company were joint employers of the relevant workforce. Based on that determination, the Board concluded that BFI violated the National Labor Relations Act by refusing to recognize and bargain with the union certified as the employees’ representative.
Following remand proceedings and a clarified articulation of the joint employer standard, the Board reaffirmed its conclusion that BFI was a joint employer and issued a standard bargaining order requiring BFI to negotiate with the union. BFI then moved for reconsideration, arguing that the Board’s order improperly imposed a broad bargaining obligation without limiting that obligation to subjects over which BFI exercised actual control.
Decision
The Board denied the motion for reconsideration, emphasizing that the issues raised by BFI did not identify any material error in the prior decision. The Board explained that the threshold question in the proceeding was whether BFI had a duty to bargain as a joint employer, not the precise contours of that obligation. In the Board’s view, once joint employer status is established, the obligation to bargain follows as a matter of course, consistent with longstanding precedent.
Addressing BFI’s core argument, the Board clarified that the scope of bargaining is a separate issue that is not resolved in a test-of-certification proceeding. Although the Board acknowledged that a joint employer’s bargaining obligations are generally tied to the terms and conditions of employment it possesses authority to control, it concluded that the record developed in the underlying representation proceeding was not designed to resolve that issue in a comprehensive manner. As a result, the Board declined to modify its order to include the limitations proposed by BFI.
The Board further noted that its order was consistent with standard remedial language applied in joint employer cases, under which all employers found to have a bargaining obligation are directed to negotiate with the certified representative. The Board rejected BFI’s attempt to distinguish its obligations from those of other joint employers, explaining that the existence of joint employer status triggers the same baseline duty to bargain, regardless of the specific allocation of control among the entities involved.
Looking Forward
This decision reinforces a critical distinction in joint employer analysis that is particularly relevant for franchisors and other multi-entity systems. The Board’s ruling makes clear that once an entity is deemed a joint employer, the obligation to recognize and bargain with a union is not conditioned at the outset on a detailed parsing of which specific employment terms that entity controls. That inquiry may arise later, but it does not limit the initial duty to bargain.
At the same time, the decision does not resolve the scope of bargaining obligations in a manner that expands liability beyond existing principles. The Board expressly acknowledged that joint employers are generally required to bargain only over matters within their authority to control, but deferred that analysis to a later stage where a more developed factual record would be available. For franchisors, this distinction is significant. It suggests that while a joint employer finding may trigger a bargaining obligation, there remains room to define and potentially limit the subjects of bargaining based on the actual structure of control within the system.
The ruling also underscores the importance of how operational authority is structured and exercised in practice. In systems where one entity retains the ability to influence or co-determine key employment terms—even indirectly—that authority may be sufficient to support a joint employer finding and the corresponding duty to bargain. At the same time, the decision reflects the Board’s continued reliance on established remedial frameworks rather than creating a separate, narrower rule for joint employers at the liability stage.
For franchisors, the practical takeaway is twofold. First, joint employer exposure remains closely tied to the allocation and exercise of control across the system. Second, even where joint employer status is found, the scope of bargaining obligations may still depend on the specific terms and conditions over which the franchisor has retained authority. Careful structuring of those relationships, and consistency between contractual provisions and operational realities, remains central to managing risk in this area.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
