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66 2 0 1 7 A N N U A L R E P O R T 2017 REPORT OF COUNSEL the PANYNJ's "cargo-facility charge." The agreement became effective on June 25, 2017. The cargo-facility charge was implemented in 2011 to help pay for infrastructure improvements in the Port of New York and New Jersey. The agreement allows the parties to discuss alternative means to bill and to collect the fee in accordance with the requirements of the Shipping Act of 1984. Modifica on of FMC Agreement-Filing-Review Process In September 2017, the FMC streamlined its forty-five day agreement- filing-review process to allow more time for review of agreements filed by ocean carriers and marine-terminal operators. The FMC eliminated the "sequential" review process, whereby agreements moved through various bureaus, and will instead hold staff meetings, after agreements are published in the Federal Register, to allow the FMC staff to make recommendations on the agreements to the commissioners two weeks before the end of the forty-five day review period. NATIONAL LABOR RELATIONS BOARD (NLRB) Defini on of "Joint Employer" In August 2015, the NLRB significantly expanded the definition of a "joint employer" to include employers who have minimal or only indi- rect control through an intermediary over the working conditions of employees or who merely reserve the right to exercise such control. Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (2015). Under this revised standard two or more entities could be found to be joint employers of a single work force, if they share or co-determine those matters governing the essential terms and conditions of the employees' employment, such as hiring, firing, discipline, supervision, direction of work or hours, and wages. In late 2017, the full five-member NLRB overruled its 2015 Browning- Ferris decision and returned to the principles governing joint-employer status that existed prior to that ruling, that is, a showing of direct and immediate control over the terms and conditions of individuals' employment is required to support a finding that multiple entities are joint employers. The Board later reversed itself because one of the three Board members voting to overrule Browning-Ferris should have recused himself from participating in the decision, since his former law firm represented one of the two employers in Browning-Ferris. The August 2015 NLRB Browning-Ferris decision was back in effect at year-end. The NLRB also issued a series of other rulings reversing decisions that had been issued by the Board under the prior administration. In addition to reinstating the longstanding prior joint-employer standard, the Board took action with respect to issues concerning: • duty to bargain (no bargaining obligation attaches to unilateral actions by an employer that are consistent with past practice), • deferral of unfair labor practice charges to the parties' contractual grievance procedure (the Board reinstated the policy that had been in effect prior to 2012, which holds charges in abeyance to encourage parties to engage in their collectively-bargained dispute-resolution procedure), • employer handbook rules and workplace policies (the nature and ex- tent of a challenged rule on the exercise of rights guaranteed under the Na onal Labor Rela ons Act should be balanced with the legiti- mate justifications associated with the rule), • scope of bargaining units (the Board reinstated the traditional "community of interest" test for use in determining the appropriate bargaining unit in representation cases), and • settlement proposals (partial settlements are proper, despite objec- tions by the NLRB's General Counsel and the Charging Party). OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) Improved Tracking of Workplace Injuries and Illnesses In May 2016, OSHA published a Final Rule that permits it to obtain and to release to the public incident-specific information regarding workplace injuries and illnesses. After several extensions, the Rule took effect in late 2017 and requires a company with 250 or more employees in the previous calendar year to transmit electronically the injury-and- illness data that it had maintained on OSHA Forms 300, 300A, and 301. Companies with between 20 and 249 employees in industries with high illness-and-injury rates must transmit the same data from OSHA Form 300A electronically. This data will be posted on a public website with personally-identifiable information excluded. The OSHA website contains a thorough explanation of the reporting obligations at www.osha.gov.

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