by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; member, ACS Board of Directors
For a union-side labor lawyer, identifying the employer for the purposes of bargaining and unfair labor practices is akin to a search for the Holy Grail. Three years of law school and courses in labor and employment law ― from excellent professors at Emory Law ― could not prepare me for the challenge of this search which consumed virtually all of my time when I was a Washington, D.C.-based attorney for the Service Employees International Union from 1985 to 1990.
The search began for me in the winter of 1985. SEIU had negotiated a city-wide contract covering its Pittsburgh janitors. Rather than allowing its union contractor to continue to service its buildings under the new labor agreement, Mellon Bank terminated its janitorial vendor and its union workforce. Nearly 70 workers lost their jobs and the benefits that went with them. They were replaced by low-wage, part-time workers who were not accorded nearly the same level of benefits. I was challenged to find a legal solution.
In the late hours of the night, poring through the case reporters at the University of Pittsburgh Law Library, I came across the Supreme Court’s decision in Boire v. Greyhound which established the joint employer doctrine. To my delight, I learned that an entity could be considered an employer even where employees were paid by another company. I also came across a Third Circuit case, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., which ― in my mind as a young lawyer ― made things quite clear: Two or more employers can be co-employers “if they share or codetermine those matters governing the essential terms and conditions of employment.” If only the analysis were that simple.