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case number sixteen dash twelve twenty ten twenty eight at L. Browning Ferris Industries of California Inc.

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doing business of BFI New Bay Island Recycling Petitioner versus National Labor Relations Board.

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Mr. Diedelberg for the petitioner, Mr. Heller for the respondent, Mr. Becker for the intervener.

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Good morning and may it please the court.

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My name is Joshua Diddleberg appearing for Browning Ferris.

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I'd like to reserve two minutes of my time.

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The board says that its new joint employment test follows the common law and Taft-Hartley, but it does not.

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And I'd like to address three key areas where the board's common law approach is flawed.

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As a threshold matter, whereas here the board is arguing for a new common law formulation, its test is not entitled to the deference of this court on that issue.

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Its test has to comport with the consensus of the judicially crafted common law and Congress's intent.

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So first, the board's new test, as the dissent pointed out.

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Can I ask one question for clarification?

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Yes.

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Does that mean the state of the common law at the time of the Taft-Hartley Act, or does it continue to evolve?

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Well, in this case, Your Honor, Congress had a definite vision of the common law when it passed Haft-Hartley 70 years ago.

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In fact, in the legislative history that we've cited, it took issue with the board essentially floating new meanings that didn't exist at the time.

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No, I get that.

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That was because they thought it was divorced from common law analysis.

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But my question is more narrow than that.

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And that is, do we mean we freeze common law

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in time at the year of the Taft-Hartley Act, or when Congress said, no, common law is going to control here, this isn't something that you have expertise in, we're going to meet, we just need common law definition, and that common law definition isn't frozen in time.

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Well, I believe it is frozen in time.

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And indeed, even the board is not looking to apply the restatement third of agency or the restatement of employment law.

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Their test is premised on the restatement second of agency.

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They take a historical approach.

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Is that how it works under all the other statutes that look to common law of agency for definition of an employee employment, those types of things?

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Does any court ever held that it's frozen in time?

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Well, you have a unique history here, because you have a situation where, in Taft-Hartley, Congress took the unusual approach of excoriating the board.

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No, but it didn't say anything there about the common law can't move after this year.

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Well, again, I would point to that legislative history and the notion that they were very concerned with the board having a floating definition.

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I get that, but that's a different problem, right?

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They weren't concerned with the common law evolving.

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They were concerned with the board having departed from the common law and put policy factors in as part of its decision-making, right?

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Well, I do think that they were concerned about overturning a particular concept of the common law or lack of common law that the Supreme Court had.

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So you have language that's in the statute that says common law is frozen?

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There's no explicit language in that regard.

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The Taft-Hartley amendments, I'm sorry.

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No, you go ahead.

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Were in 1947, right?

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Yes, Your Honor.

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Wasn't the restatment second of agency approved in 1958?

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Yeah, it was actually the restatment first was in effect then, but there's really no difference in the text between the two restatments.

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So really, we have to go back to the restatement first.

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We can't even look at the restatement second.

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Well, there's no substantive difference.

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It's supposed to be safe, though.

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Yeah.

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Yes.

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But certainly not the restatement of employment law, which is not a restatement of the common law, but essentially an attempt to... Well, it's a restatement of state common law.

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It absolutely is.

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It says in the restatement of employment law itself, we're restating state common law of employment.

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Well, but it's also stretching across a variety of federal statutes, for example, that have different histories and different purposes.

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Yes, but it says we're restating that we, in fact, issue trying to restate statutory law.

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We are restating common law.

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That's what it says.

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OK.

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The first area where the board's test is problematic is that, as the dissent pointed out, it's possible to have a joint employer finding without the need for a pervasive amount of direct and immediate control over the employment details of particular workers.

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And the center of gravity in the common law and in this Court's approach, and I believe reflecting the intent of Congress, is act of control.

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The actual case, the Third Circuit Browning Ferris case, which the Board says that it's relying upon and wants to get back to, the actual holding of that case is that the putative joint employer exerted control.

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and the findings were that the putative employer exerted control.

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I believe it's at 1124.

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That's the actual holding of the case.

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And, you know, that notion of exertion of control dovetails, again, with Congress's understanding of the essence of a common law employment relationship as direct supervision of the meta-inquiry of this court.

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On page 1120 of Browning Ferris,

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We talk about BFI notes that the hours of operation at the transfer site were set by the city.

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It can only be changed by the city.

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And what the Third Circuit said is BFI continues to have the authority to set the shifts.

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So doesn't that mean that they were following the text of the restatement second and looking at both

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authority that's unexercised and actual exercise authority.

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That's what it says they're doing right there.

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I believe when the court describes its holding, it describes it in terms of the fact that Browning First was exerting control.

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Well, I can't possibly, because one of the part of the evidence, it can't be exclusively that.

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It's not exclusively that.

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OK, so it was looking at both things.

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As I said, it's looking at both things.

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But the center of gravity is active control.

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And I think when the court described its controlled jurisprudence, for example, in FedEx 1, it noted that the most significant factor, the most important factor,

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is active control.

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So what do you mean by center of gravity or most important factor?

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Does that mean that you're not disputing that they can when they put all the factors out on the table and all the evidence on the table they can include consideration of

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authority that they have but isn't exercised.

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Do you dispute that they can include consideration of that?

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Well, you know, basically, you know, the board is not arguing for a mechanical application, for example, of the 220 factors.

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Basically, what it has is three buckets, direct control, indirect control, and potential control or right to control.

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We would argue, and I would speak to this, that the indirect control bucket hasn't even been found to be a factor.

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I mean, there's no judicial consensus at all in terms of... Well, can we just focus for now?

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Yes.

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We'll take these one piece at a time.

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Sure.

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Let's just focus on the reserved authority, or have the authority, unexercised authority.

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Right.

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So you've got two buckets.

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Right.

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Direct authority, which I assume that when you say direct, you mean direct, exercised authority.

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I mean, direct, active, immediate process.

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Right.

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the authority to exercise, un-exercised authority.

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As to those, I just have a narrow question, because I noticed you were saying center of gravity.

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So I take it you agree that they can consider, when they lay everything out, they can certainly consider as a relevant factor un-exercised authority as they did in Brownian Ferris.

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They can consider it, but the focus of this court, for example, is to discount the right of control or to give it no weight in relation to the party's actual practice.

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I wonder, as far as the potential, the right to control, are there any other, I see three areas where that was true with respect to the employment relationship here.

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One was the contract provided that an employee of the, whatever, what was it, lead, what was it?

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Lead point, your honor.

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Lead point.

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that could only work six months.

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Yes.

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And Browning never enforced that.

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That's right.

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Two, that it could refuse to allow any particular employee of Leadpoint to work on the premises.

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But it never exercised that.

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Correct.

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And third, it capped the wages so that the wages of Leadpoint employees were not higher than the FIs.

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And that was ultimately illusory, Your Honor.

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Yes, it was never addressed.

[00:10:04] Speaker 09:
Is there any other area where there was potential right to control but not exercised?

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Well, I think there was a discussion of sort of setting pre-performance qualifications, for example, for the contractor's agents.

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Discussion?

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Was that part of the contract?

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It was part of the contract, but it was also never enforced.

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On the six-month business, I guess it's a right to control, but it seems to me that that reflects

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more in favor of your position than not.

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It shows an intention on the parties that we're not going to have a bunch of permanent employees here on the premises.

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So whether you enforce that or not, I mean, it seems to me a point in favor of your position.

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Well, that's right.

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I mean, ultimately, the court's controlled jurisprudence has been getting to what is the actual relationship to the parties?

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What is their actual practice?

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What's actually going on here?

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You know, in contracts, there's often, as you know, a lot of protective language, a lot of rainy-day worst-case scenario language that never gets enforced, that's never intended to be enforced except in the most extreme circumstances.

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Can I clarify what you mean by not enforced in the sense of

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Was it not enforced in that the record shows that, in fact, people stayed more than six months, salaries went higher, people were getting paid more than the one Browning Ferris employee that was on the line?

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Or not enforced in that lead point just colored within the lines and so it never became an issue and that Browning Ferris never had to say, bad, don't do that?

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Which is it?

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Well, it's really more the first in the sense that it was never an issue between the parties.

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Did LeadPoint pay a wage to its employees that was higher than the one Browning Ferris employee?

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It did not, but the record said that they never sought to do so.

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Well, but why would you seek to do so when the contract says you can't?

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I'm just trying to figure out whether that counts as an exercise or it's having exactly the effect it's meant to.

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If I have a contract that says I can't do something, why would I try to do it?

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Well, in this particular case, it was really illusory.

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It was never going to be a consideration.

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What does that mean?

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They just were never going to pay the people that much?

[00:12:33] Speaker 06:
Yeah, I mean, in the facts of this case, $5 an hour was much higher than any of what the lead point employees were getting.

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It was just never an economic consideration for the contract.

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I wanted to follow up on the rights of control thing.

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Sure.

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So I named three.

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You had one pre-approval training or qualification.

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Yes.

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But it seems to me there's another.

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And again, not necessarily against your position.

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And that is that, as I understand it, this contract was a terminable at will.

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Yes.

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But they never terminated.

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Isn't that a right to control?

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I mean, that's saying that every employee of Leadpoint will lose his job.

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Yeah.

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But that fact that it's terminable at will seems to me to cut in your favor.

[00:13:30] Speaker 06:
Well, potentially so.

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As far as the relationship is concerned.

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Yes, and it's also one of the problems with the board's indirect and reserve control approach, which is it's basically conflating economic dependence and economic influence in a business relationship with control over the employees themselves.

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But were they going to lose their job or were they just going to not work on the lead point or on the Browning-Ferris contract?

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They were not going to work on the Browning-Ferris contract.

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In fact, there's nothing in the contract that says that they have to lose employment with lead point generally.

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So, just so that I'm clear, what are you arguing is our standard of review of the test itself?

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Are you saying it's de novo?

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It's de novo, Your Honor, because it's a pure law question under the common law.

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The board is arguing for a new formulation.

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What do you do with the cases talking about fairly conflicting views?

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How do you read those?

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Right.

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As the court held last week, that really more goes to the application of a lot of facts and not when the board is arguing for a new formulation.

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And what about the corporate express case where the board, this was an independent contractor case, and the board had traditionally, had been applying the common law factors and said, you know, the main thing is control.

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But then in corporate express they said, we're actually gonna change the emphasis here and we're going to look at entrepreneurial opportunity.

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So we'll march through the factors.

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But we're really changing what it is we're looking for under the common law.

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And this court said that decision by the board was reasonable.

[00:15:20] Speaker 06:
I mean, I think that's a de facto change in their standard.

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I mean, they have overturned 30 years of precedence.

[00:15:28] Speaker 03:
I'm sorry, are you talking about Corporate Express or this case?

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This case right now.

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I just want to know what on standard of review.

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What do we do about the fact that when you have the the board?

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Continuing to apply the common law factors and saying apply the common law, but I'm going to emphasize these particular factors and we didn't say de novo we said

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it was upheld it because it was quote reasonable which sounds like a chevron review what do we do with that case on decided I'm right I get you that it's not crystal clear in our precedent yeah I'm not sure what to do with that case sure I mean ultimately the touchstone you know is the common law and ultimately

[00:16:10] Speaker 06:
this court as a common law court is going to have to determine whether the test or the application of the formulation is ultimately consistent with the common law.

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And the issue in this case is that ultimately what the board is doing is not.

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There's no judicial consensus for its indirect control theory.

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They cite a single 1962 Fourth Circuit case, which is actually a single employer case.

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this court has never held that indirect control as they conceive of it, is even a factor under the analogies.

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What are the problems of using the restatement of agency?

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I guess the main provision is 226, right?

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Is that right?

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220, 227, 5.

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Yeah, right.

[00:16:57] Speaker 09:
Is that really dealing with, mainly dealing with liability and tort cases?

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as opposed to the employment relationship that we have here.

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And so I, you know, who knows what the common law is on joint employers.

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There's not much, there's one little, what is it, Sub J and 227 that mentions it.

[00:17:23] Speaker 06:
I mean, there's really almost nothing.

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I mean, you know, the restatement obviously was not codified into the act.

[00:17:30] Speaker 06:
And if it were, you know, sort of the end of the analysis, then we probably wouldn't be here because there's no real discussion of joint employer relationships as such under the restatement.

[00:17:44] Speaker 09:
one company liable when you have two companies involved, in a tort case, are rather different than the considerations in the labor relations field.

[00:17:54] Speaker 09:
I mean, you're talking about deep pockets, and employers may try to evade financial responsibility for unsafe working conditions, and all the rest of those things, which is not really directly on point with the employment relationships.

[00:18:10] Speaker 06:
No, I agree.

[00:18:11] Speaker 06:
I mean, if one were to look at the restatement, I mean, there is, as I'm sure you saw, an example that's based on the Greyhound case.

[00:18:18] Speaker 06:
And I think it's notable that the comments there focus on the active control, the active supervision of the customer, of the client.

[00:18:29] Speaker 03:
So you're saying...

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that we shouldn't be looking at the restatement of agency.

[00:18:33] Speaker 03:
We should be looking at the restatement of employment law, which your amicus, the Chamber of Commerce, says we should do for the reasons Judge Randolph articulated.

[00:18:41] Speaker 03:
The agency's law just doesn't fit the situation.

[00:18:44] Speaker 03:
Is that your position?

[00:18:46] Speaker 03:
It's not our position, but, you know, since... So notwithstanding the odd fit for tort liability and defining joint employer, you're saying we need to look... You disagree with the Chamber of Commerce and say we need to look to the restatement of agency law.

[00:19:00] Speaker 06:
I mean, I think ultimately, one is looking at control factors.

[00:19:04] Speaker 06:
That is the focus.

[00:19:06] Speaker 06:
And we've argued that there needs to be a historical application.

[00:19:10] Speaker 06:
I'm simply arguing the alternative.

[00:19:12] Speaker 06:
If the court is so inclined, for whatever reason, to look at the restatement of employment, I think the Greyhound example favors our position.

[00:19:21] Speaker 03:
Can I ask?

[00:19:25] Speaker 03:
What does, I guess I have two questions.

[00:19:28] Speaker 03:
One is you keep going to the indirect control when you say there's no judicial authority for that, but I take it you're recognizing that there's both repeated text in the restatement of agency and case law that addresses reserve control, unexercised control as a factor.

[00:19:46] Speaker 03:
And it was in Browning Ferris itself from the Third Circuit.

[00:19:49] Speaker 03:
Yes, there is.

[00:19:49] Speaker 03:
So that doesn't have, you think that's in a, as indirect control has some arguments as to reserved authority.

[00:19:56] Speaker 06:
I would break down the three buckets this way very simply.

[00:20:00] Speaker 06:
The focus of the analysis is ultimately on the party's actual practice and not this kind of protective language.

[00:20:08] Speaker 06:
So that's why I say that the center of gravity and in this court's controlled jurisprudence has been on active control.

[00:20:16] Speaker 06:
Reserve control has been recognized as a factor, but if you look at cases such as Local 777 or Herbert Harvey, where the court has weighed active versus reserve control, its turn has always been to the party's actual practice.

[00:20:31] Speaker 06:
It wants to know how in reality, how in practice, have the parties ordered their relationship?

[00:20:37] Speaker 06:
What are they really doing vis-a-vis each other?

[00:20:39] Speaker 06:
And with respect to indirect control, there's no judicial consensus for that.

[00:20:44] Speaker 06:
In fact, in Aurora Packing,

[00:20:46] Speaker 03:
Just to stay back on the reserve control issue, if you had – let's just pretend there's no indirect control budget for purposes of answering these questions.

[00:20:55] Speaker 00:
Indirect.

[00:20:55] Speaker 03:
I get that you've got arguments about that.

[00:20:57] Speaker 03:
Sure.

[00:20:58] Speaker 03:
As to the reserve control, if – because before you said, yeah, they can consider it, but it can't have any legal

[00:21:07] Speaker 03:
determinative force, which there's not much point in considering something.

[00:21:10] Speaker 03:
If you sort of had a situation where the facts were 50-50, well, none of these things look like direct control, but some of these things do not.

[00:21:17] Speaker 03:
Could reserve control make the difference?

[00:21:22] Speaker 06:
I don't believe so.

[00:21:23] Speaker 03:
I mean, I think ultimately there – So can't – what's the point of considering something that can have no legal impact?

[00:21:28] Speaker 06:
I mean, you know, I mean, it's part of, you know, the mise en scene.

[00:21:31] Speaker 03:
It's not the part of it.

[00:21:32] Speaker 03:
It can't count for anything.

[00:21:33] Speaker 03:
You can talk about it, I guess, because you have a right to say whatever you want to say, but it has no legal impact.

[00:21:38] Speaker 03:
So why consider it?

[00:21:39] Speaker 03:
It can't make a difference.

[00:21:41] Speaker 06:
You know, it's a factor, you know, but it's not a heavily weighted factor.

[00:21:44] Speaker 03:
In what area of law do we have a factor that can't make a difference and have no impact at all?

[00:21:50] Speaker 06:
Again, I go back to the underscoring of active control.

[00:21:56] Speaker 03:
The underscoring just may mean that that gets counted twice or something, but it doesn't mean that the one doesn't get counted at all and couldn't make a difference.

[00:22:06] Speaker 06:
I just have to point out this court's cases.

[00:22:08] Speaker 09:
There's got to be a timing question here, too, to just follow up.

[00:22:14] Speaker 09:
If the contract has only been in existence when the unfair labor practice charges get filed and go through the board, if the contract has only been in existence for a month,

[00:22:26] Speaker 09:
then it may be that everything you're talking about is potential to control, because there hasn't been a long history of exercising the contract and the terms and conditions of the particular joint agreement.

[00:22:44] Speaker 09:
Yes.

[00:22:46] Speaker 09:
So I think there's got to be a timing factor built into this

[00:22:52] Speaker 06:
Well, you know, potentially so.

[00:22:54] Speaker 06:
You know, again, you know, where you have months and years of experience, you know, where you have, you know, where you can look at a pattern of pervasive control or the lack of it, you know, then I think that's what you look to.

[00:23:06] Speaker 09:
I mean, we talk about the common law of joint employers, but there's also a common law of the

[00:23:12] Speaker 09:
The factory or the particular plant that grows up after a period of time where things are done in a certain way even though they're not particularly spelled out, but that takes some time to develop and grievance procedures and resolving things and so on and so forth.

[00:23:30] Speaker 06:
Right, contracts are entry points.

[00:23:32] Speaker 06:
I mean, you need to see over in the fullness of time how they're actually enforced or not enforced.

[00:23:38] Speaker 03:
So does that mean if the representation petition is filed in the first two months of a contract like this, you could have one answer?

[00:23:47] Speaker 03:
And if it's filed after two years, you could have a different answer?

[00:23:50] Speaker 03:
Exact same contract?

[00:23:51] Speaker 06:
Well, again, I think it may be unfortunate timing for the union in terms of- It could be different.

[00:23:57] Speaker 06:
I'm sorry?

[00:23:57] Speaker 03:
It could be different based on that timing?

[00:23:59] Speaker 06:
Well, I mean, you're going to have more evidence, obviously, of active control or lack of active control over a longer period of time.

[00:24:06] Speaker 03:
So with that, if you don't have that evidence, does the reserved authority count for more if we don't have a lot of time yet?

[00:24:13] Speaker 06:
You know, would it count for more?

[00:24:15] Speaker 03:
Because we don't really know who's going to be interested, just as Judge Randolph said.

[00:24:18] Speaker 03:
Yes, I mean, I think.

[00:24:19] Speaker 03:
And you agreed, I thought.

[00:24:21] Speaker 06:
You know, I mean, you know, in that hypothetical, which is not this case, you know, where you don't have, you know, a body of active control, I think more so, but I think even still... I'm just trying to test the boards.

[00:24:32] Speaker 03:
I understand.

[00:24:32] Speaker 03:
Test, you know, they have a decision here that you're challenging, a rule of law that you're challenging, and you were challenging buckets, and one of those buckets was reserved authority, and so I'm just trying to clarify in response to Judge Randolph makes a very fair point that

[00:24:48] Speaker 03:
factual matter everything's reserved the first week right uh... and so is this the difficulty with that is it sounds like

[00:24:58] Speaker 03:
when they, how fast they can file this petition is gonna get a different answer.

[00:25:02] Speaker 06:
I'm not sure what to do with it.

[00:25:04] Speaker 03:
It's half as sensible as it is.

[00:25:06] Speaker 06:
I would say in that circumstance, there's simply no sufficient quantum of active control that's been exercised.

[00:25:13] Speaker 06:
We don't know what the relationship between the parties actually is in practice, and in the absence of that evidence of active control, we can't find a joint employment relationship.

[00:25:25] Speaker 03:
Now, you'd want to talk about indirect control, and I just have a question.

[00:25:28] Speaker 03:
Sure.

[00:25:29] Speaker 03:
Do you – what does indirect control mean?

[00:25:33] Speaker 03:
Do you understand what – from the – not in your own opinion, from the board's decision, do you – is it – I tell my clerk to tell you something, is that indirect control or – You know, I think it actually means a few things in the way that they express in their opinion.

[00:25:47] Speaker 06:
Let me see if I can break those down.

[00:25:50] Speaker 06:
So where the board is talking about control that is essentially based on the putative employers of the customer's ability to potentially control or change its operations, that is one aspect of indirect control that they've identified.

[00:26:09] Speaker 03:
And in Aurora Packing... But would that be different from the reserved authority?

[00:26:12] Speaker 03:
I'm just trying to really understand.

[00:26:13] Speaker 03:
That sounds like that overlaps with reserved authority.

[00:26:16] Speaker 06:
Well, that's talking more, for example, with respect to the work streams.

[00:26:23] Speaker 06:
Browning Ferris has a certain business.

[00:26:25] Speaker 06:
They are open certain hours of the day for various business and entrepreneurial reasons.

[00:26:32] Speaker 06:
And that's the essence of their operation.

[00:26:35] Speaker 06:
In Aurora Packing, this court held that those kinds of considerations aren't even control at all.

[00:26:41] Speaker 06:
If you're going to force the customer to reconstitute its business or fundamentally change its business, that can't be control.

[00:26:50] Speaker 06:
So that's one aspect of the indirect control bucket.

[00:26:54] Speaker 06:
The second is where the board impermissibly conflates economic influence over the contractor with control over the contractor's employees.

[00:27:05] Speaker 06:
And it shows up in places like where the board stresses the at-will nature of the contract.

[00:27:14] Speaker 06:
you know, essentially it's an economic dependence or influence message that if you don't do what we say, we're going to cancel our contract.

[00:27:21] Speaker 06:
It's not control over the employees, it's economic influence being exercised as against the contractor itself.

[00:27:29] Speaker 06:
or in other areas where the customer, you know, Browning Ferris, is making requests or is stating preferences, you know, where the board claims that a certain outcome is preordained.

[00:27:42] Speaker 06:
But remember that the premise of the joint employer relationship is that you have two independent businesses that are each capable of exercising their own discretion.

[00:27:52] Speaker 06:
And so where a test in its application is essentially saying that, well, you're going to knuckle under for economic influence or economic dependence reasons.

[00:28:04] Speaker 06:
I mean, that could be potentially a factor in some other statute.

[00:28:07] Speaker 06:
But under the economic realities analysis that the board is forbidden to apply under the NLRA,

[00:28:16] Speaker 06:
It's improper.

[00:28:17] Speaker 06:
You know, that's why the EEOC's brief was so mystifying and telling to say that they're the same test because they can't be the same test.

[00:28:25] Speaker 06:
You know, there is this separate history under the NLRA that does not exist under Title VII, the FLSA, and so forth, where Congress did not.

[00:28:34] Speaker 03:
Do you mean by that that it's a different common law definition of employee employment under Title VII than it is under the NLRA?

[00:28:44] Speaker 03:
because they both say they look to the common law.

[00:28:46] Speaker 06:
Well, they both look to the common law, but one of the issues with sort of the development of the test, and even this court sort of has two parallel tests, is that the FLSA test, the Title VII test, has been infused with... The Title VII doesn't have the same definition as the FLSA, so we can take that off the table.

[00:29:06] Speaker 03:
So Title VII looks to the common law,

[00:29:09] Speaker 03:
NLRA looks to the common law.

[00:29:11] Speaker 03:
That's what the meaning of the TAP partly was.

[00:29:13] Speaker 03:
Look to the common law.

[00:29:15] Speaker 03:
So is your position that a common law of joint employer could mean one thing for Title VII and something different for the NLRA?

[00:29:25] Speaker 03:
Or does it have to be the same?

[00:29:26] Speaker 03:
Which of those?

[00:29:27] Speaker 03:
Different or same?

[00:29:29] Speaker 06:
with respect to the pure common law, presumably the same.

[00:29:33] Speaker 06:
But again, in Title VII jurisprudence and FLSA jurisprudence, there's this whole overlay of business reality or economic.

[00:29:42] Speaker 03:
Where's that in a Title VII case?

[00:29:44] Speaker 06:
Where in a Title VII case?

[00:29:45] Speaker 03:
In a Title VII case.

[00:29:45] Speaker 03:
So we don't, when we set, we mean common law with a wink.

[00:29:49] Speaker 06:
Well, I mean, it's looking to ultimate purposes.

[00:29:53] Speaker 06:
It's looking to economic realities.

[00:29:56] Speaker 03:
What case says you can go start with the common law, but feel free under Title VII to overlay economic realities?

[00:30:04] Speaker 06:
You know, if overlay is the wrong term, you know, in al-Safi, for example, there's a discussion of, you know, one test, which is sort of the pure Browning-Ferris common law test, and then the other test, I think Sporidis was the case in which it's sort of common law

[00:30:20] Speaker 06:
plus consideration of economic realities.

[00:30:24] Speaker 03:
Now, as Salvi said, we don't need to resolve that here.

[00:30:26] Speaker 03:
We're going with the Brown and Farris common law.

[00:30:28] Speaker 03:
And it wasn't even a close issue there.

[00:30:29] Speaker 03:
It wasn't going to make a difference which test was applied.

[00:30:31] Speaker 03:
But we didn't hold there that for purposes of Title VII, when it says common law, that that's a common law plus

[00:30:40] Speaker 03:
I thought Supreme Court been pretty clear it's common law for Title VII.

[00:30:44] Speaker 03:
So it has to be this, I mean, whatever meaning of joint employer there is under the NLRA, it's going to have to govern Title VII, Americans with Disabilities Act, FELA, not FLSA, that's maybe not.

[00:30:58] Speaker 03:
That's a little different.

[00:31:00] Speaker 03:
But as to all those, we're going to have one rule here.

[00:31:03] Speaker 06:
You know, except as we've argued that there's a historical grounding.

[00:31:07] Speaker 03:
The historical grounding just said, go look at the common law.

[00:31:10] Speaker 03:
I don't see how the historical grounding said it's going to be different common law.

[00:31:16] Speaker 03:
Because we can't do the frozen in time.

[00:31:18] Speaker 03:
If we do frozen in time, we can't even look at the restatement seconds.

[00:31:21] Speaker 03:
So it can't be a different common law.

[00:31:24] Speaker 03:
That's a pure question of law.

[00:31:25] Speaker 03:
And it's going to have one meaning on Monday and the same meaning on Tuesday in a Title VII case, right?

[00:31:32] Speaker 06:
You know, but in this particular legislative history, you know, Congress is saying, you know, again, don't tell us what, you know, the meanings, you know, give us the meanings at the time the Wagner Act was enacted.

[00:31:42] Speaker 06:
You know, don't change the meanings.

[00:31:44] Speaker 03:
So we can't look at restatement second, even though that's what you briefed us.

[00:31:49] Speaker 06:
You know, we took their control arguments head on.

[00:31:53] Speaker 06:
There's no real substantive difference between the first and the second restatement.

[00:31:57] Speaker 06:
This is a common... Yeah.

[00:32:00] Speaker 09:
feature of historical analysis.

[00:32:03] Speaker 09:
The history doesn't change, but the interpretation of the history can evolve over time.

[00:32:08] Speaker 09:
even though the events are in the past and over, and nobody questions it.

[00:32:14] Speaker 09:
And so one way of looking at this is that the cases, particularly in this circuit and the Supreme Court case, and particularly Kelly, I think, which you highlight, is an evolving understanding of what the common law was at the time that the Taft-Hartley was enacted.

[00:32:35] Speaker 06:
I would say this, I mean, in Taft-Hartley, Congress took, again, the unusual act of seeking to overcome a Supreme Court decision.

[00:32:44] Speaker 06:
That's not unusual.

[00:32:48] Speaker 06:
Maybe more common these days, but.

[00:32:49] Speaker 06:
Yeah.

[00:32:50] Speaker 06:
I don't know if these days.

[00:32:51] Speaker 09:
S. Gridge, Professor S. Gridge has an article in the Georgetown Law Journal years back of hundreds of cases where Congress has done it.

[00:33:00] Speaker 06:
But we have in Hearst a case study of what Congress did not want to constitute an employment relationship.

[00:33:06] Speaker 06:
And that included, you know, findings of broad contours of work, control over broad contours as opposed to the minutiae of daily activities, which was significant.

[00:33:18] Speaker 06:
You know, I think

[00:33:21] Speaker 06:
So I'm sorry, actually I'm just circling back to your original question, Your Honor, in terms of the indirect control bucket.

[00:33:28] Speaker 06:
So we have the Aurora packing aspect of it, which this Court has said is not even control when you're talking about having to fundamentally change relationships.

[00:33:38] Speaker 03:
Just to be clear, I thought you said there were three things.

[00:33:40] Speaker 03:
Am I wrong that they've done that are indirect control?

[00:33:43] Speaker 03:
I thought you've only given us the who.

[00:33:46] Speaker 06:
I'm sorry, I was talking about the buckets.

[00:33:47] Speaker 06:
I mean, skipping ahead, the third is that in not giving effect to the limited and routine control aspects of control.

[00:34:01] Speaker 06:
The court is, I'm sorry, the board is not recognizing that there are certain aspects of control, even direct control, which this court and other courts have found are not probative with respect, and in fact are fully consistent with contractor relationships.

[00:34:17] Speaker 06:
And they're in a range of this court's cases, like North American van lines and so forth, talking about monitoring or evaluating worker performance or ends.

[00:34:27] Speaker 06:
customer demands, satisfying statutory obligations, and the like.

[00:34:33] Speaker 04:
What do you think that language meant?

[00:34:35] Speaker 04:
It's hard for me to, you know, there's double negative in the sentence, and what exactly do you think that they meant there with that particular sentence?

[00:34:48] Speaker 04:
About... I'm sorry, Your Honor.

[00:34:51] Speaker 04:
Let me see if I can find exactly how they said it.

[00:34:57] Speaker 04:
But they're, of course, I can't find it because I want to now.

[00:35:22] Speaker 04:
I guess, what is it that you think that they meant

[00:35:25] Speaker 04:
by this, it has to not be more than, they were no longer say that it has to not be more than limited in routine.

[00:35:41] Speaker 04:
I think that's the way to think.

[00:35:46] Speaker 04:
I mean, what do you think that we will no longer require that a joint employer exercise authority not in a limited and routine manner?

[00:35:56] Speaker 03:
Yeah, I think it's on page 14.

[00:35:57] Speaker 03:
Right.

[00:35:58] Speaker 03:
Or JA 382.

[00:36:00] Speaker 03:
Neither does it require that control, when it is exercised, must be exercised directly and immediately and not in a limited and routine manner.

[00:36:07] Speaker 06:
Is that what you're talking about?

[00:36:08] Speaker ?:
Yeah.

[00:36:08] Speaker 06:
Yes, there are various forms of control, even forms of direct control, which this Court and this Court have found are nonetheless consistent with a contractor relationship.

[00:36:19] Speaker 06:
in those principles that I was referring to that are in a number of the court's cases, such as North American van lines, and we've referenced them in our brief.

[00:36:30] Speaker 06:
Specifically, with respect to limited routine control, what the board has often described that as is the what, where, and when of performance.

[00:36:42] Speaker 06:
And remember, these are ultimately customer relationships.

[00:36:45] Speaker 06:
And if a customer can't control the basic what, where, and when of the performance it seeks, it's hard to see where there could be any contractor relationships left.

[00:36:57] Speaker 06:
And if you combine that with what I think is one of the key sentences in the board's analysis on 382, where it talks about

[00:37:06] Speaker 06:
where it is honing in on its vision of joint employment and says where one party owns and controls the premises, where it controls the broad contours of work, where it dictates the essential nature of the work.

[00:37:25] Speaker 06:
and provides guidance to the other party, which actually exercises the day-to-day directed immediate control, that that forms a joint employer relationship.

[00:37:37] Speaker 06:
But that's actually a classic contractor relationship.

[00:37:40] Speaker 03:
Well, they say in the supplier firm, pursuant to the user's guidance makes specific personnel decisions and administers job performance on a day-to-day basis.

[00:37:52] Speaker 03:
You know, the working words there are pursuant to the user's guidance.

[00:37:56] Speaker 03:
I assume if, and I know it's not this case, so if Company X, we won't call it Browning Ferris, had all this going on, ordinary contract, but then,

[00:38:06] Speaker 03:
The contract said, we reserve the right to have input on the operations.

[00:38:10] Speaker 03:
And then was, as it turned out, going, sitting up there on its windows, supervising the floor and said, that person's not efficient enough.

[00:38:17] Speaker 03:
And it didn't say to that person, said it to lead point and said, that person is not efficient.

[00:38:22] Speaker 03:
They're slow, they're slowing down the line.

[00:38:24] Speaker 03:
You gotta move that person off.

[00:38:25] Speaker 03:
And then the next day I said, that person over there, they're not concentrating enough.

[00:38:28] Speaker 03:
You've got to move them off.

[00:38:30] Speaker 03:
And I think you've got too many.

[00:38:32] Speaker 03:
The next day I said, you've got too many people on this line, not enough over there.

[00:38:35] Speaker 03:
You've got to move them over there.

[00:38:36] Speaker 03:
All of this is to lead point, not to the employees.

[00:38:39] Speaker 03:
We're still into this contract provision that says we get to have input.

[00:38:44] Speaker 03:
Would that be indirect control?

[00:38:46] Speaker 03:
And would that be relevant, something they could consider in deciding whether or not the company acts as a joint employer?

[00:38:55] Speaker 06:
Yeah, it's not cognizable as control under the NLRA given the prohibition against considering economic realities.

[00:39:04] Speaker 03:
Wait, does economic realities mean I can't look at what

[00:39:10] Speaker 03:
Company X is actually doing on a day-to-day basis to control the people working in its workplace?

[00:39:16] Speaker 06:
It's monitoring ends.

[00:39:18] Speaker 06:
It's monitoring worker performance.

[00:39:20] Speaker 03:
The examples I gave to you, they can't be considered?

[00:39:26] Speaker 03:
Because... On Thursday they said fire that person.

[00:39:30] Speaker 03:
On Friday, they said, this cost plus thing getting a bit pricey.

[00:39:33] Speaker 03:
Let's lower everybody's wages all to lead point pursuant to our we get to have input.

[00:39:38] Speaker 03:
You're going to tell me that that is forbidden to be considered under the common law?

[00:39:43] Speaker 06:
It is not control.

[00:39:45] Speaker 06:
It is guidance.

[00:39:47] Speaker 06:
It is monitoring.

[00:39:48] Speaker 03:
That's your position.

[00:39:48] Speaker 06:
OK.

[00:39:49] Speaker 06:
That is our position.

[00:39:53] Speaker 03:
All right.

[00:39:53] Speaker 03:
We'll give you some time on rebuttal.

[00:39:55] Speaker 03:
Thank you.

[00:40:10] Speaker 01:
Good morning.

[00:40:11] Speaker 01:
May it please the court.

[00:40:12] Speaker 01:
Joel Heller for the National Labor Relations Board.

[00:40:16] Speaker 01:
The board's joint employer doctrine ensures that control over employees in the workplace carries with it responsibilities to them under the Act.

[00:40:25] Speaker 01:
In this case, the board acted to place that doctrine on a stronger analytical footing, to clean up its precedent in the area, and to exercise its responsibility to ensure the continued vitality of the Act's protections.

[00:40:36] Speaker 01:
Specifically, it did two things.

[00:40:39] Speaker 01:
One, it reaffirmed that the standard for a joint employer relationship is whether two entities share or determine those matters governing the essential terms and conditions of employment.

[00:40:49] Speaker 01:
And second, it made clear what type of evidence it would consider in making that determination.

[00:40:53] Speaker 01:
Direct and indirect control and a reserved right to control over terms and conditions and the means and the manner of worker performance.

[00:41:02] Speaker 03:
Can you tell me what indirect control means?

[00:41:04] Speaker 01:
Sure.

[00:41:05] Speaker 01:
If you look at what the board

[00:41:07] Speaker 01:
was talking about when it says indirect control.

[00:41:10] Speaker 01:
The first example is, I think, what was just being discussed at the end of the previous exchange, and that is using Browning Ferris using the lead point supervisors as intermediaries.

[00:41:23] Speaker 01:
And look at page two of the board's decision, JA 370, where it says,

[00:41:27] Speaker 01:
Control exercise indirectly, such as through an intermediary, may establish joint employer status.

[00:41:33] Speaker 01:
And there's evidence of that happening in this case, where Browning-Ferris supervisors and lead point supervisors were in frequent communications, both in the pre-shift meetings and during while work was going on, where they would tell lead point supervisors things like, we need to move these employees to that line, because there are productivity standards with Browning-Ferris sets

[00:41:56] Speaker 01:
is not being met.

[00:41:59] Speaker 09:
So if I'm a hotel owner and I have, say, 40 employees, I'm not covered by the National Labor Relations Act, right?

[00:42:08] Speaker 09:
Because you have to be 50.

[00:42:10] Speaker 09:
Is that the minimum?

[00:42:12] Speaker 01:
OK.

[00:42:12] Speaker 01:
I haven't looked at that in a while.

[00:42:13] Speaker 01:
But I assume that's fine.

[00:42:16] Speaker 09:
But anyway, so I hire a lawn service.

[00:42:19] Speaker 09:
people to come out, 10, 15 people.

[00:42:23] Speaker 09:
And one guy is cutting the grass too low, and I go to the supervisor and say, hey, listen, tell that guy to raise the miller up.

[00:42:31] Speaker 09:
It's too low.

[00:42:32] Speaker 09:
And another guy is putting mulch on top of my flowers around the bed.

[00:42:35] Speaker 09:
And I say, hey, tell that guy, stop that.

[00:42:38] Speaker 09:
You're going to kill the flowers, and so on and so forth.

[00:42:40] Speaker 09:
And that happens day to day with the landscaping services.

[00:42:44] Speaker 09:
Does that mean that now, as the hotel owner number one,

[00:42:48] Speaker 09:
because they have 15 employees, I'm covered by the National Labor Relations Act as a joint employer, and number two, that in fact I have become a joint employer.

[00:43:00] Speaker 01:
So the jurisdictional question, that is not something presented by this case, whether you can combine the two in order to create jurisdiction.

[00:43:09] Speaker 09:
It must be common throughout the United States where you have two employers, each of which has less than 50 people.

[00:43:17] Speaker 09:
But go on.

[00:43:17] Speaker 01:
Yeah.

[00:43:19] Speaker 01:
Sure.

[00:43:20] Speaker 01:
the using the other employer as an intermediary.

[00:43:24] Speaker 01:
I think if you have to look at what they are, what they are communicating, what are they using the intermediary for if they're

[00:43:30] Speaker 01:
communicating directives to the employees about how to perform their jobs, like we have here, that is evidence of a joint employer relationship.

[00:43:40] Speaker 01:
You don't automatically become a joint employer.

[00:43:42] Speaker 01:
The board is still going to weigh the evidence.

[00:43:44] Speaker 01:
What the board did in this case was state that it's not going to, per se, exclude certain categories of evidence from the analysis.

[00:43:51] Speaker 01:
at all.

[00:43:52] Speaker 01:
It's on the table and the board is going to look at it, the indirect control like we had here.

[00:43:58] Speaker 01:
The other example of indirect control that we have in this case is where Browning-Ferris, for example, sets out

[00:44:08] Speaker 01:
sets out the shift times.

[00:44:09] Speaker 01:
They set when the lines will operate, when employees take breaks, and when a certain line will run into overtime.

[00:44:19] Speaker 01:
Leapoint then comes in and makes assigned specific employees to those various shifts.

[00:44:27] Speaker 01:
So we have both Browning-Ferris and Leapoint contributing to work hours.

[00:44:34] Speaker 03:
Why do you call that indirect?

[00:44:35] Speaker 03:
Isn't that direct?

[00:44:37] Speaker 01:
Because Browning-Ferris is not saying, Joe, you're going to work at 8 o'clock tomorrow.

[00:44:42] Speaker 01:
They're saying, here is when employees will work.

[00:44:45] Speaker 01:
And Leadpoint is the one who says, Joe, you are going to work tomorrow.

[00:44:48] Speaker 01:
So you could call it codetermine, codetermining hours.

[00:44:52] Speaker 01:
I think it is also a form of

[00:44:54] Speaker 01:
indirect control because it's not Browning-Ferris setting the specific guidelines itself.

[00:45:01] Speaker 01:
And that was a similar situation in the Third Circuit's Browning-Ferris case.

[00:45:05] Speaker 01:
Browning-Ferris in Pennsylvania had a similar situation where the one employer set the shifts and the other employer assigned particular individuals to work the shifts.

[00:45:16] Speaker 09:
If I have a restaurant, I have a lot of waiters, and I need every

[00:45:21] Speaker 09:
two nights or whatever, I need an exterminator to come in with his crew.

[00:45:27] Speaker 09:
And I say, I don't want you in there when we're open.

[00:45:34] Speaker 09:
The only time you can come in and perform that service on our premises is after we close.

[00:45:39] Speaker 09:
Is that evidence of joint employment?

[00:45:42] Speaker 01:
Well, so the different situation there is that these employees in the bargaining unit are doing the core work of Browning Fairs.

[00:45:50] Speaker 01:
They are recyclers.

[00:45:52] Speaker 01:
It's not that they're bringing in someone to do niche work or some kind of specialized work.

[00:46:00] Speaker 03:
Where do the boards say the core work of the business is what we're limiting our decision to the core work?

[00:46:08] Speaker 01:
The board didn't didn't talk about that.

[00:46:09] Speaker 01:
I was just because the facts in this case are... So that's not actually a limitation on their test?

[00:46:14] Speaker 08:
It's not one of the multi-pronged factors.

[00:46:18] Speaker 01:
So no, the board did not expressly say that that is going to make a difference.

[00:46:24] Speaker 01:
It's again not presented by this case, so it's possible the board could say that's going to be a limitation, but it had no occasion to do so here.

[00:46:34] Speaker 01:
The other point, the council, as I pointed out, when describing indirect, they said that this is all about influence, economic influence over the other lead point.

[00:46:46] Speaker 01:
But the board expressly said that it is not considering influence.

[00:46:50] Speaker 01:
It says on JA381,

[00:46:52] Speaker 01:
Sufficient influence is not enough, however, if it does not amount to control.

[00:46:56] Speaker 01:
So it is making that distinction between influence, influence over the workplace and control over the employees' terms and conditions and their work performance.

[00:47:04] Speaker 03:
Well, when they say sufficient influence, unless it amounts to control, do they mean unless it amounts to indirect control?

[00:47:10] Speaker 01:
They didn't specify what kind of control they were talking about.

[00:47:13] Speaker 03:
Does that matter?

[00:47:14] Speaker 03:
Because sufficient influence is, some might think, is just another word for indirect control, right?

[00:47:19] Speaker 01:
Well, I don't think so.

[00:47:20] Speaker 01:
I think the board was trying to make a distinction there between influence and control.

[00:47:28] Speaker 03:
But the point is that the contractors want to make their customers happy.

[00:47:33] Speaker 03:
And so when someone comes in and says, I'm really unhappy,

[00:47:39] Speaker 03:
with how slow this is going, particularly when I look at those five workers over there.

[00:47:45] Speaker 03:
Boy, are they slow, they're dropping stuff, hitting the stop button all the time.

[00:47:50] Speaker 03:
I'm really unhappy about that.

[00:47:54] Speaker 03:
That's not what I expected under this contract.

[00:47:59] Speaker 03:
And by the way, the contract says I have the right, I reserve the right to fire, to prevent anyone from working if I choose to exercise it.

[00:48:06] Speaker 03:
Is that influencers?

[00:48:08] Speaker 03:
And of course, I don't want to lose this contract.

[00:48:13] Speaker 03:
They're out of here.

[00:48:13] Speaker 03:
They're out of this contract.

[00:48:15] Speaker 03:
They can go work on some other contract.

[00:48:17] Speaker 03:
Is that influencers or is that indirect control?

[00:48:20] Speaker 01:
So I think if it's a question of the customers or the contractors

[00:48:28] Speaker 01:
satisfaction with the end result, with the product, then that is different and that is not in addition of joint employer status.

[00:48:37] Speaker 03:
Is what I said satisfaction with the end result or is it with the work process?

[00:48:47] Speaker 01:
the Browning Ferris actor in this situation, this hypothetical, and comes in at the end of the week, or the end of the day, and says, you know, I don't like what the output is now.

[00:48:58] Speaker 03:
No, they say what I said.

[00:48:59] Speaker 03:
And let's say they say it at noon.

[00:49:01] Speaker 01:
So are they on site?

[00:49:03] Speaker 03:
I think that the- Yes, they're on site.

[00:49:06] Speaker 01:
I think the point here is that Browning-Ferris has this kind of continual day-to-day... I guess I want to get back into it.

[00:49:13] Speaker 03:
I don't want to go on company X. The hypo that I gave to you at noon by somebody on site, because that's how they can see those five people are working really slowly, and they're very unhappy about what they're observing.

[00:49:25] Speaker 03:
That's all I say.

[00:49:26] Speaker 03:
I'm extremely unhappy about this.

[00:49:29] Speaker 03:
And Leadpoint knows they've got this reserved right under the contract.

[00:49:34] Speaker 03:
And Leadpoint wants to make the customer happy.

[00:49:37] Speaker 03:
So they get rid of those five people.

[00:49:39] Speaker 03:
Is that influence or is that indirect control?

[00:49:42] Speaker 01:
So they have the reserved right.

[00:49:45] Speaker 01:
So that's reserved control.

[00:49:47] Speaker 01:
That's in the other bucket.

[00:49:48] Speaker 03:
Yeah, that's generic over everybody.

[00:49:50] Speaker 03:
I'm trying to understand the difference between influence

[00:49:56] Speaker 03:
strongly articulated by someone who wants to keep a customer happy and in direct control.

[00:50:02] Speaker 01:
I think influence is a bigger picture

[00:50:05] Speaker 01:
uh... when these right kind of bigger picture quality control have customer happiness that wasn't what i was talking about my hypotheticals and i was in direct and i think it is more when it is more granular when they're getting involved in the details of the work performance then yes i think that counts that is evidence of indirect control as the board would have it

[00:50:29] Speaker 01:
And we've already talked about the distinction the board makes between the end results, control over the end result, which it says is not in addition to joint employer status, and control over the means and manner of work, which the board says is or can be evidence of joint employer status.

[00:50:48] Speaker 03:
So the... I just worry, I guess just to lay it on the line, my concern is, particularly with the indirect control,

[00:50:59] Speaker 03:
The board here didn't come out and sort of said, we're going to consider these two things along with everything else, but didn't sort of say what role they're going to have in that analysis and didn't even apply the second prong of its test, which is fine.

[00:51:16] Speaker 03:
You may have these joint employer indicia, but are they tied to

[00:51:23] Speaker 03:
your ability to participate, are they relevant to collective bargaining, which I assume means are you a joint employer with respect to an essential term and condition of employment.

[00:51:32] Speaker 03:
Just didn't apply that second prong of its test.

[00:51:35] Speaker 03:
And by not doing so, by not saying

[00:51:38] Speaker 03:
Here's what we think they've got sufficient control over, looking at all these factors.

[00:51:43] Speaker 03:
I'm just going to lay out for you my concerns so you can address it.

[00:51:47] Speaker 03:
Without having gone through that second step, without having said, we're going to consider these things, but how much weight do they carry, which the second prong of their test would have required them to do.

[00:51:59] Speaker 03:
What assurance do we have that this test, and particularly indirect control, is going to continue to police the line properly between genuine joint employers?

[00:52:13] Speaker 03:
and stepping into the realm where they can't go of really what's an independent contract and they're just spending an awful lot of time on things that is limited and routine policing.

[00:52:27] Speaker 03:
What assurance without that further analysis do I have?

[00:52:31] Speaker 01:
So I think the board did make that further analysis.

[00:52:34] Speaker 01:
If you look at the application section of the board's decision, it went through and it highlighted what evidence it found to be probative of the joint employer question.

[00:52:43] Speaker 01:
I think it breaks it down into three categories.

[00:52:46] Speaker 01:
As to specifically one specific example as to the whether there would be meaningful collective bargaining is when we're talking about when the board talks about the the speed of the stream of the streams as they go by which had been a source of attention with the workers in the bargaining unit and how Browning Ferris had

[00:53:06] Speaker 01:
sole control over productivity standards, what speed the line was going to go.

[00:53:11] Speaker 01:
And thus, bargaining with, only with lead point, if these employees could only bargain with lead point, that issue would not be addressed.

[00:53:20] Speaker 03:
So I get that they identified line speed.

[00:53:25] Speaker 03:
Talked about a few other things here and there, where there was some evidence, but then they didn't know how this

[00:53:31] Speaker 03:
How is this going to actually be relevant to the collective bargaining process?

[00:53:34] Speaker 03:
How is this going to work?

[00:53:36] Speaker 03:
Because you're now saying all we know from the board's decision is they're a joint employer certainly when it comes to line speed.

[00:53:43] Speaker 03:
We mentioned some other things.

[00:53:45] Speaker 03:
They don't go on to say, I don't understand how this joint employer status works.

[00:53:51] Speaker 03:
Once they're a joint employer, are they there to bargain on everything or only the things that they control?

[00:53:56] Speaker 03:
Do they bargain on their own or do they have to bargain jointly?

[00:54:01] Speaker 01:
So the board says that, in this decision, that a joint employer's bargaining obligation attaches only to those issues on which it has control.

[00:54:13] Speaker 01:
They don't have to come in and bargain about everything that goes on in the workplace.

[00:54:16] Speaker 01:
It's only those issues upon which that joint employer has control.

[00:54:21] Speaker 03:
And the board went through and... Indirect and it could be exclusively indirect and on exercise control.

[00:54:28] Speaker 03:
For example, someone, a union comes in and says, these wages are too low.

[00:54:34] Speaker 03:
They go to lead point and lead point goes, talk to us about it.

[00:54:38] Speaker 03:
They're the ones that would set the cap on it by the single Brownian Ferris employee.

[00:54:42] Speaker 03:
And you go to Brownian Ferris and they go, look, all we've done is say, don't go past this person.

[00:54:47] Speaker 03:
That's all we've done.

[00:54:48] Speaker 03:
We've never exercised it.

[00:54:50] Speaker 03:
We're not doing anything else to do with wages.

[00:54:52] Speaker 03:
We've got nothing to negotiate.

[00:54:54] Speaker 03:
There's this cap here which any routine contract can have as a cap on the price of the contract.

[00:55:01] Speaker 01:
Well, I'm not sure they haven't exercised it because there is that employee who earns more.

[00:55:05] Speaker 03:
It's exercised because you've got a contract that says, here's a cap on the price.

[00:55:08] Speaker 03:
But that's going to cover an awful lot of contracts and make someone a lot of people join employers, isn't it?

[00:55:15] Speaker 01:
So the kind of the practicalities of how this is going to work when there are two or more join employer situation, that

[00:55:26] Speaker 01:
Those kind of questions will come up under any joint employer standard, whenever there is more than one party involved in bargaining.

[00:55:32] Speaker 03:
Well, they won't come up if it's indirect, unexercised authority.

[00:55:40] Speaker 03:
But for this new test.

[00:55:40] Speaker 03:
It doesn't mean it's wrong.

[00:55:42] Speaker 03:
But I'm just saying, whether it's right or wrong, the common law is something we have to address.

[00:55:48] Speaker 03:
But assuming that there are legitimate common law factors,

[00:55:52] Speaker 03:
Adding them back in when they haven't been considered, at least the key decisions that the board overruled, does push the line between employment, joint employment, and independent contracts in a way that wasn't before, and yet the board never grappled with that because it never got to the second prong of its test.

[00:56:14] Speaker 01:
Well, there were cases prior to this 1984 shift where the board did consider indirect factors like indirect control and reserved control.

[00:56:26] Speaker 01:
And joint employer bargaining happened under those cases.

[00:56:30] Speaker 01:
And so there is some history there.

[00:56:34] Speaker 03:
Would the board test allow evidence of just indirect and un-exercised control?

[00:56:42] Speaker 03:
Could that make someone a joint employer under this test?

[00:56:45] Speaker 03:
Do we know that or not?

[00:56:47] Speaker 01:
Since that's not the facts of this case, the board didn't rule definitively one way or the other.

[00:56:55] Speaker 01:
It doesn't rule out that possibility.

[00:57:00] Speaker 03:
So we can look at those factors, and those factors can actually be determinative, I assume.

[00:57:06] Speaker 01:
Well, as you pointed out earlier, a factor is not much of a factor if it doesn't have a legal weight.

[00:57:10] Speaker 03:
So you could have that situation, but then we don't understand how the line between

[00:57:15] Speaker 03:
unexercised, indirect control will be kept from stepping on real independent contracts.

[00:57:23] Speaker 03:
I'm just not clear that the board grappled with that, partly because they just dropped the ball and didn't address the second half of their test.

[00:57:31] Speaker 01:
Well, again, respectfully, I would dispute that they didn't.

[00:57:34] Speaker 03:
All right, we're really concerned about the speed here.

[00:57:37] Speaker 01:
That was not the only factor that was addressed.

[00:57:40] Speaker 01:
I mean, maybe they didn't say, we are now discussing our second prong about meaningful collective bargaining.

[00:57:44] Speaker 03:
No, it's not just that.

[00:57:45] Speaker 03:
They didn't sort of say.

[00:57:46] Speaker 03:
I don't understand how essential terms and conditions work.

[00:57:49] Speaker 03:
You start splitting wages, you'll negotiate about part of the wage, you'll negotiate about the other.

[00:57:55] Speaker 03:
The second part of the test is, is this, we find these sort of joint employer factors, but is assigning this joint employer labeled here something that's gonna be consonant with sort of the collective bargaining process?

[00:58:10] Speaker 03:
Is it gonna be workable under the collective bargaining process?

[00:58:13] Speaker 03:
Is it gonna police the lines that we know

[00:58:16] Speaker 03:
We have to police.

[00:58:18] Speaker 03:
And it seems like it just kind of left that out there.

[00:58:21] Speaker 03:
And even, I mean, Browning-Ferris says, we're not even sure, other than speed of the line, we're not even sure, after reading the decision, what things we are a joint employer asked to.

[00:58:32] Speaker 03:
The fact that, you know, once every three years we told someone to go stand somewhere else, is that, they don't know what they're a joint employee.

[00:58:39] Speaker 03:
The union company, they're not sure which thing they're supposed to negotiate or not, because the board didn't do the second half of its test.

[00:58:45] Speaker 01:
Well, the board sets out examples starting at page 18 of its decision.

[00:58:50] Speaker 01:
It talks about hiring, firing, and discipline, supervision, direction of work, and hours, and wages.

[00:58:56] Speaker 01:
And so this, there is, even though in the order itself, it doesn't say the party, Browning Faire shall bargain upon request over this issue, this issue, this issue.

[00:59:05] Speaker 01:
There is information in the decision where the board talks about where it has found

[00:59:09] Speaker 01:
sufficient control by Browning-Ferris and which has a role in bargaining and of course Browning-Ferris

[00:59:17] Speaker 01:
knows what it does.

[00:59:18] Speaker 01:
It's not a mystery to Brown and Ferris the kind of arrangement it has with lead point.

[00:59:23] Speaker 01:
It is in control.

[00:59:25] Speaker 01:
It has that information.

[00:59:26] Speaker 03:
I suspect they will say that it's certainly a mystery as to which things they did that turned them into a joint employer that has to negotiate and which things were, in their mind, just ordinary routine setting contract terms.

[00:59:42] Speaker 03:
I can't imagine that there wouldn't actually be disputes going forward about

[00:59:46] Speaker 03:
what things they have to negotiate over and don't.

[00:59:49] Speaker 01:
And again, that is, those kind of disputes will arise under any kind of joint employer situation.

[00:59:54] Speaker 01:
And so it can't be a knock on this joint employer approach.

[00:59:57] Speaker 03:
Well, it can be when it used to be easy, right?

[01:00:00] Speaker 03:
They're directly doing this, and so it's easier to know what they're directly controlling.

[01:00:04] Speaker 03:
But when Leadpoint's doing stuff, but Browning-Ferris has an exercise ability to indirectly

[01:00:14] Speaker 03:
whatever that means, influence things, then do they negotiate, too?

[01:00:20] Speaker 03:
And that's the part that wasn't brought home.

[01:00:22] Speaker 03:
The prior cases, I think that's when the board was quite candid and said, look, our prior cases have sort of dropped these factors, and that was wrong, and we're putting them back in.

[01:00:30] Speaker 03:
So we don't have cases that show where there's this confusion, where there's heavy reliance on indirect

[01:00:38] Speaker 01:
Right, so I think it is bringing up an important point is that one of the things the board did here was clean up its case law and says we are faced with inconsistent strands of precedent.

[01:00:50] Speaker 01:
In that situation, the board did what this court tells it to do in such situations.

[01:00:54] Speaker 01:
It picks one.

[01:00:55] Speaker 09:
Before you sit down, would you agree with me that

[01:01:00] Speaker 09:
that the board is of no difference from the Court of Appeals when the board's decision rests on an interpretation of the Supreme Court decision?

[01:01:12] Speaker 01:
When the board is interpreting a Supreme Court decision, does it get deference?

[01:01:19] Speaker 01:
No, I do not believe so.

[01:01:20] Speaker 09:
And there are a lot of cases holding that.

[01:01:24] Speaker 09:
If the Supreme Court decision is a discussion of

[01:01:28] Speaker 09:
the common law of agency and employer-employee relationship, and the board rests on its interpretation of that decision, does the board get deference then?

[01:01:44] Speaker 01:
So the deference as to a Supreme Court decision that was interpreting the common law?

[01:01:49] Speaker 09:
Yes.

[01:01:50] Speaker 01:
No, I think it's the same answer.

[01:01:52] Speaker 09:
What if it's a court of appeals decision interpreting the common law?

[01:01:56] Speaker 09:
Does the Supreme Court or does the board get deference then?

[01:01:59] Speaker 01:
So the board, we agree that the board does not get Chevron deference as to what the common law is.

[01:02:06] Speaker 01:
There is a degree of deference as to applying the common law, but as to the pure questions of what is the common law, the board does not get deference.

[01:02:16] Speaker 01:
I would point out in this case that

[01:02:20] Speaker 01:
It's we're not faced with a purely common law question in the joint employer determination.

[01:02:26] Speaker 09:
The board said that the definition of what a joint employer is is dependent upon the common law.

[01:02:33] Speaker 09:
It said that in the opinion.

[01:02:34] Speaker 01:
Certainly.

[01:02:34] Speaker 01:
The overall standard is whether two employees share or co-determine matters governing terms and conditions of employment.

[01:02:44] Speaker 01:
Within that, part of that analysis is, is there a common law relationship?

[01:02:48] Speaker 01:
So as to that question, I agree with you.

[01:02:50] Speaker 01:
The board does not get deference.

[01:02:52] Speaker 01:
The ultimate question of whether two particular entities are joint employers, Browning Farris and Leadpoint, is, as the Supreme Court said, an employer, a question of fact.

[01:03:02] Speaker 09:
And that's reviewed for substantial evidence.

[01:03:08] Speaker 04:
So let me make sure I understand what you just said.

[01:03:13] Speaker 04:
With respect to our review of whether this new test cleaning up the board's case law is reviewed de novo, your answer is what?

[01:03:28] Speaker 01:
The test is not reviewed de novo.

[01:03:32] Speaker 01:
The test of whether there's a joint play that's shared or co-determined test is reviewed for whether, it's a legal question, it's reviewed for whether it's rational and consistent with the act, with the NLRA.

[01:03:42] Speaker 01:
The part of the test that run as one element within that test that is a common law analysis, the board doesn't get deference on that point of the analysis.

[01:03:54] Speaker 01:
And the other point I wanted to raise, to you Judge Mulighton, in response to your question before, is that these are fact-intensive cases.

[01:04:09] Speaker 01:
types, what particular types of indirect control will be probative in the future.

[01:04:16] Speaker 01:
And we will have those cases.

[01:04:18] Speaker 01:
And in this kind of, it lends itself to what the Supreme Court in Eastex called an evolutionary approach, rather than the imposition of bright line rules.

[01:04:26] Speaker 01:
And so there will be development and there will be further guidance in cases going forward as to

[01:04:35] Speaker 01:
excuse me, the types of evidence, indirect evidence that would contribute to a joint employer finding.

[01:04:42] Speaker 03:
Can the contract between Brownian Forest and Ferris, excuse me, and Leappoint is terminable at will?

[01:04:49] Speaker 01:
Yes.

[01:04:51] Speaker 03:
If they're a joint employer, is it still terminable at will, or do they have to negotiate with the union where they could terminate the contract?

[01:05:02] Speaker 01:
So whether the

[01:05:04] Speaker 03:
How they could... Can they terminate it at will?

[01:05:08] Speaker 03:
Or do they have to negotiate with the union before they can terminate it at will?

[01:05:11] Speaker 01:
Well, if they... I think it depends on what kind of collective bargaining agreement they enter into.

[01:05:19] Speaker 03:
They have to bargain with the union over whether they can continue to terminate the contract at will.

[01:05:26] Speaker 01:
If, well, if the collective bargaining agreement provides some kind of contrary instruction, then that would be a... They don't raise it with the union.

[01:05:37] Speaker 01:
Sorry?

[01:05:38] Speaker 03:
I should say the collective bargaining agreement is silent on this question.

[01:05:43] Speaker 03:
Can they terminate or do they have to bargain with the union?

[01:05:46] Speaker 03:
golly gee, it's sure going to affect the employees.

[01:05:49] Speaker 03:
And the other things are in the collective bargaining agreement.

[01:05:52] Speaker 01:
Well, the board certainly noted that it was terminable at will, but it did not place kind of heavy emphasis on that as a faction.

[01:06:00] Speaker 03:
My question's just as better blocked.

[01:06:02] Speaker 03:
There's legal rules on when companies that are

[01:06:07] Speaker 03:
you know, don't dispute their status as a employer governed by the NLRA can just stop things without bargaining with the union, eliminate positions, things like that.

[01:06:17] Speaker 03:
So I guess I'm back to the same question.

[01:06:20] Speaker 03:
Can they terminate at will without negotiating with the union if they are a joint employer?

[01:06:29] Speaker 01:
Well, so again, that's

[01:06:31] Speaker 01:
That's the kind of question that's gonna come up in joint employer relationships, not particular to this approach to the joint employer relationship.

[01:06:40] Speaker 01:
So it's, I'll admit it's not a question I fully thought about, but I don't think it matters so much one way or the other as to the propriety of this test, of this approach to the joint employer doctrine.

[01:06:59] Speaker 03:
I know I had a lot of questions.

[01:07:02] Speaker 03:
Did you have one minute to wrap up?

[01:07:05] Speaker 01:
Sure.

[01:07:05] Speaker 01:
Thank you.

[01:07:07] Speaker 01:
So just a few remaining points, and that is

[01:07:12] Speaker 01:
The right to control, the reserved right to control, which we didn't talk about much here, is I think a pretty well-established common law principle.

[01:07:21] Speaker 01:
It shows up in the restatement.

[01:07:23] Speaker 01:
It shows up in this court's cases, both in the joint employer context, like the chemical workers case, and in the independent contractor cases, which are not really directly on point here, because everyone agrees that these are not independent contractors.

[01:07:37] Speaker 01:
These people in the bargaining unit are employees.

[01:07:42] Speaker 01:
Looking at Hearst, I think it's just important to see what Hearst was doing so we know what the Supreme Court was rejecting.

[01:07:50] Speaker 01:
And Hearst specifically said, we're not going to apply the common law.

[01:07:53] Speaker 01:
We're not going to look to control as the touchdown of the analysis.

[01:07:57] Speaker 01:
The board is not doing that.

[01:07:59] Speaker 01:
So what Congress rejected in Taff-Hartley is something different than what the board is doing now.

[01:08:05] Speaker 01:
And then finally, just a few evidentiary points that I want to emphasize of why the board's finding is supported by substantial evidence that these two entities are.

[01:08:15] Speaker 03:
Pick your best one because we're past our minute now.

[01:08:17] Speaker 01:
Okay.

[01:08:18] Speaker 01:
I apologize.

[01:08:19] Speaker 01:
And that is the kind of ongoing

[01:08:22] Speaker 01:
day-to-day monitoring of lead point employees by Browning Ferris supervisors that is then transformed into action where they come into the line and instruct them both one-on-one standing, you know, pick out that, pick out that, and stopping all production, calling all the workers in for these big group meetings, and telling them things, Browning Ferris supervisors telling them things like what technique to use when performing their work.

[01:08:46] Speaker 03:
Thank you very much.

[01:08:47] Speaker 01:
Thank you.

[01:08:55] Speaker 07:
Morning.

[01:08:55] Speaker 07:
My name is Craig Becker.

[01:08:56] Speaker 07:
I represent the Intervenor Local 350.

[01:09:00] Speaker 07:
I'd like to take up the invitation of my friend Mr. Dittleberg to talk about what's really going on in this case.

[01:09:07] Speaker 07:
And I think it's responsive to Judge Millett's question is, what exactly did the board rely on to find joint employment?

[01:09:15] Speaker 07:
And what does it tell us about what they'll hold in the future?

[01:09:18] Speaker 07:
Because as in all these cases, the board, in accordance with the Supreme Court instructions, looks at all the facts

[01:09:25] Speaker 07:
that suggest control.

[01:09:27] Speaker 07:
And I want to point to four of those facts or highlight four of those facts that the board found here.

[01:09:33] Speaker 07:
One, the board found that BFI not only had the authority to, but actually did directly supervise these employers.

[01:09:40] Speaker 07:
any time it believed it was necessary to do so, and that it did so routinely.

[01:09:45] Speaker 07:
And I think it's important to quote what the board actually held in unchallenged findings.

[01:09:50] Speaker 07:
The board said quote, BFI managers exercise near constant oversight of employees work performance, not oversight of the product,

[01:09:59] Speaker 07:
at the other end of those streams, but oversight of performance.

[01:10:04] Speaker 07:
The board then held, and again I quote, or found, excuse me, and again I quote, in numerous instances, BFI managers have communicated detailed work instructions to employees on the stream, held meetings with employees to address customer complaints and business objectives, and to disseminate preferred work practices and assign to employees tasks that take precedence over any work assigned to lead point.

[01:10:26] Speaker 07:
This demonstrates not only actual control,

[01:10:29] Speaker 07:
But it also demonstrates what this course decision and joint council of teamsters, which is implicitly that BFI implicitly reserves the right to supervise the details of the work whenever it's necessary.

[01:10:42] Speaker 07:
What was going on here is that you had lead point in its employees operating in a unified chain of command.

[01:10:49] Speaker 07:
That is, this recycling facility operated no differently than had BFI conceivably employed everyone.

[01:10:59] Speaker 07:
That is, they had a chain of command.

[01:11:01] Speaker 09:
On the conveyor belts, were they doing all this by hand, or did they have some machine sort it?

[01:11:09] Speaker 07:
Your Honor, these workers, or at least the sorters, and there's three categories that were at issue, were doing it by hand.

[01:11:15] Speaker 07:
There were machines they called screens that screened out certain materials.

[01:11:18] Speaker 07:
But what these people were doing were actually standing at those streams and picking out what they were supposed to pick out.

[01:11:26] Speaker 07:
So in other words,

[01:11:29] Speaker 07:
The board found that BFI's managers continually exercised oversight of the employees, not the product, of the employees.

[01:11:43] Speaker 07:
And when they found it necessary to correct their work.

[01:11:46] Speaker 03:
Did they say continually?

[01:11:47] Speaker 03:
Did the board say that?

[01:11:49] Speaker 07:
The board said exactly that.

[01:11:53] Speaker 07:
It said, let me go back and give you the page.

[01:12:01] Speaker 07:
The board said that... Yes, it said on page 19, exactly.

[01:12:15] Speaker 07:
I quote, BFI managers exercise near constant oversight of employees' work performance.

[01:12:20] Speaker 07:
Not of the product, but over performance.

[01:12:22] Speaker 09:
And as I said, the board... That doesn't really support your proposition.

[01:12:29] Speaker 09:
Those constant oversight means that they were out on the line looking.

[01:12:34] Speaker 09:
It doesn't mean that they were out on the line supervising.

[01:12:37] Speaker 07:
Well, what does supervision mean with this type of unskilled work?

[01:12:41] Speaker 09:
Well, that's a good question.

[01:12:44] Speaker 09:
If the BFI supervisor went up to the supervisor for Leadpoint and said, I suggest that you tell that employee over there to stop dropping all this refuse from the ground, is that

[01:12:59] Speaker 07:
Supervision?

[01:13:01] Speaker 07:
There's two types of supervision that went on here.

[01:13:04] Speaker 07:
One, as I've said, the board found that routinely there was direct supervision.

[01:13:09] Speaker 07:
Numerous examples.

[01:13:10] Speaker 07:
Here's how you pick plastic out of the stream.

[01:13:13] Speaker 07:
Here's the best technique for it.

[01:13:14] Speaker 07:
When you take your break, you first have to clean up your workstation before you go on break.

[01:13:19] Speaker 07:
Those are direct, detailed commands from BFI managers to the lead point employees.

[01:13:26] Speaker 07:
Then there's indirect supervision.

[01:13:28] Speaker 09:
Who determined when the break would occur?

[01:13:30] Speaker 07:
The break was determined by BFI.

[01:13:32] Speaker 07:
When they stopped the line, that's when employees took their break.

[01:13:36] Speaker 09:
And they also went beyond that in terms of... Is that a subject of negotiation between BFI and Lead Point?

[01:13:42] Speaker 07:
It's not specified in the contract.

[01:13:45] Speaker 09:
No.

[01:13:47] Speaker 07:
Just an understanding.

[01:13:49] Speaker 07:
The understanding was the contract provided that Leadpoint would supply personnel to operate under BFI's instructions.

[01:13:59] Speaker 07:
So the instructions were quite detailed in that regard, and that would be the third fact that I would point to, which is the board found that BFI exercised total control over the employee's workload.

[01:14:14] Speaker 07:
uh... board found again i quote bf i think that's a number of lead point laborers to be a part assigned each materials tree they didn't say the point is coming in

[01:14:25] Speaker 07:
But we need picked out of these lines.

[01:14:27] Speaker 07:
They said, we want you to have five people here, five people here, six people there.

[01:14:31] Speaker 07:
And not only there, precisely there.

[01:14:34] Speaker 07:
So the board found, quote, the sorters occupy set workstations along each stream, and that BFI dictates the location of those stations.

[01:14:42] Speaker 07:
So it wasn't just six on this line.

[01:14:44] Speaker 07:
It was here on this line, here on this line, and here on this line.

[01:14:48] Speaker 07:
And then the board found, and again I quote, BFI had sole authority to set the speed of the material street.

[01:14:54] Speaker 07:
So in terms of the most basic term and condition of employment, how fast you have to work controlled exclusively by BFI.

[01:15:07] Speaker 07:
Vacation time was not controlled by BFI.

[01:15:10] Speaker 07:
What about seniority?

[01:15:12] Speaker 07:
We don't know if seniority was a consideration for any... What about maternity leave?

[01:15:16] Speaker 09:
I'm sorry, what?

[01:15:17] Speaker 09:
Maternity leave?

[01:15:18] Speaker 07:
Leave, vacation, all sorts of leave.

[01:15:22] Speaker 07:
There's no evidence that BFI controlled it.

[01:15:24] Speaker 07:
Was there a 401K plan at Lake Point had?

[01:15:28] Speaker 07:
I am not certain, but there's certainly no evidence that BFI controlled it or required it.

[01:15:33] Speaker 07:
Sick leave?

[01:15:34] Speaker 07:
No evidence of BFI control that.

[01:15:37] Speaker 07:
So there's clearly, there's no argument that I would put before this court or that the board found that BFI controlled all the terms and conditions of employment.

[01:15:47] Speaker 07:
But that's not what the test is.

[01:15:49] Speaker 07:
The test, as you found Judge Randolph in the Dunkin' Donuts case and as Judge Millett found in Alsafi, is control over some terms and conditions of employment.

[01:16:02] Speaker 07:
And so here you have direct supervision.

[01:16:05] Speaker 07:
You have routine, indirect supervision.

[01:16:07] Speaker 07:
You have control over the most fundamental of working conditions, which is how fast do I have to work.

[01:16:13] Speaker 07:
And as my colleague has said, there was conflict about that issue.

[01:16:17] Speaker 07:
Employees were concerned that they were being required to work too fast.

[01:16:20] Speaker 07:
So if my client wants to bargain about that because it's unsafe or because it's impossible, they need to have BFI at the table.

[01:16:28] Speaker 03:
Do we know from this decision that indirect just means I'm sort of, I'm telling lead point and they're telling you, or is indirect cover more than that?

[01:16:39] Speaker 07:
All we know is what the board held.

[01:16:43] Speaker 07:
And as in all common law adjudication, they use a term and then they apply it to the facts here.

[01:16:50] Speaker 07:
So we know

[01:16:52] Speaker 07:
Two things.

[01:16:53] Speaker 07:
We know what the board said it does not mean.

[01:16:56] Speaker 07:
What the board explicitly said it does not mean is what BFI says the board says it did mean.

[01:17:02] Speaker 07:
That is, the board says it doesn't mean the ordinary requirements that any purchaser of goods and services applies in order to get what it's paying for.

[01:17:11] Speaker 03:
Well, I thought they said, as Judge Wilkins said in sort of the double negative sentence, we're not going to any more decline to consider things just because they are

[01:17:23] Speaker 03:
part of the limited and routine oversight.

[01:17:25] Speaker 03:
So in fact, they are considering that, which I would assume would be part of indirect control.

[01:17:31] Speaker 03:
So they do consider it.

[01:17:32] Speaker 07:
Yes.

[01:17:32] Speaker 07:
I think we know that the board has said, we're going to consider as relevant reserve control, indirect control, and what used to be discounted as limited and routine control, even if it's direct.

[01:17:46] Speaker 07:
But to know what those terms mean, as always in common law adjudication, we have to see how they were applied in this case.

[01:17:53] Speaker 07:
And they replied in this case to what many of us would think would be direct control.

[01:18:00] Speaker 07:
That is, I see someone from up in the control room, a BFI manager sees an employee who's not picking plastic appropriately, and they send a directive, an explicit directive down through the lead point supervisor on the line, correct this person's performance.

[01:18:19] Speaker 07:
or they stop the line and allow people to take breaks during the stoppage of the line.

[01:18:25] Speaker 03:
How do I know what to do with line speed?

[01:18:27] Speaker 03:
Because on the one hand, if you're the person standing there, it feels very much like a condition of your work environment.

[01:18:34] Speaker 03:
On the other hand, if someone going to do a contract says, look, I get 1,500 tons of recycling in a day,

[01:18:43] Speaker 03:
And I've got to process 1,500 tons of recycling a day on these three lines.

[01:18:49] Speaker 03:
That's what my factory has.

[01:18:50] Speaker 03:
I can't afford to build more lines.

[01:18:52] Speaker 03:
I've got three lines.

[01:18:53] Speaker 03:
I've got 1,500 tons.

[01:18:54] Speaker 03:
They've got to come in, and they've got to go out in a 24-hour period.

[01:18:59] Speaker 03:
I'd like a contract for workers that will get that done.

[01:19:03] Speaker 03:
At that level, it feels to me like that's just the contract term.

[01:19:06] Speaker 03:
It's the output.

[01:19:07] Speaker 03:
It's the product.

[01:19:08] Speaker 03:
Even though the natural consequence of that is it's going to dictate

[01:19:13] Speaker 03:
have to dictate the speed at which these folks are working.

[01:19:16] Speaker 03:
So is that routine contract product things that the board shouldn't be considering or is that a term and condition?

[01:19:22] Speaker 07:
I think that's actually a perfect hypothetical to illustrate what the board held here and what it didn't hold here.

[01:19:29] Speaker 07:
So any entity in BFI's position would dictate

[01:19:37] Speaker 07:
what it wants to get through the contract, which would have some influence on terms and conditions.

[01:19:41] Speaker 07:
So if they had simply said, we're going to hire you to sort recycled materials.

[01:19:48] Speaker 07:
And we're going to dump this much at the door, and we're going to expect you to sort this many tons over this period of time according to these specifications at the other end.

[01:19:57] Speaker 07:
That would, of course, affect working conditions.

[01:20:00] Speaker 07:
But that's very different from saying, we are going to control

[01:20:04] Speaker 07:
where you place your employees, how many employees you place on the line, and we're going to control the speed of the line when it operates and when it stops.

[01:20:13] Speaker 03:
Well, speed of the line is just the way of that's the speed it takes in the hypothetical.

[01:20:17] Speaker 03:
That's the speed it takes to process 1,500 tons a day.

[01:20:20] Speaker 03:
That's just calculable as a matter of math.

[01:20:23] Speaker 03:
That's the speed it has to go at.

[01:20:25] Speaker 03:
And as to number of employees, what if they instead just said, here's how much we're willing to spend?

[01:20:32] Speaker 03:
And by the way, you can't pay anyone a wage higher than you're paying our one employee.

[01:20:37] Speaker 03:
And so that's for lead point to sort out how many people are there.

[01:20:41] Speaker 03:
Would that then still be something the board considers, or at that point is that just the ordinary contract terms?

[01:20:47] Speaker 07:
That I think the board would say is an ordinary contract.

[01:20:49] Speaker 07:
That is, all specifications of product quality, the nature of the product, how quickly it has to be produced, and what we're going to pay you to do that obviously have some attenuated influence on

[01:21:02] Speaker 07:
working conditions and wages.

[01:21:04] Speaker 07:
But here, there was much more than that.

[01:21:07] Speaker 07:
That is, they didn't hire Leadpoint to produce a product according to a specified schedule or a set amount.

[01:21:15] Speaker 07:
They integrated Leadpoint into their operation, maintained direct control over the employees, and direct control over the employees' work life.

[01:21:25] Speaker 07:
That is, it wasn't Leadpoint who was deciding, because of this

[01:21:29] Speaker 07:
the speed at which we have to produce this product, we want 15 people working instead of four, or we want six people on the line instead of four, or we want them to stand in these places.

[01:21:40] Speaker 07:
It was BFI that made all those very detailed decisions about the work life of these people sorting on the line.

[01:21:47] Speaker 07:
That's very different from saying, here's how much we'll pay you, and here's what you're supposed to do in return, and here's the timetable.

[01:21:53] Speaker 04:
Now, what exactly are the terms and conditions of employment that Browning Ferris is considered to be a joint employer based on this decision?

[01:22:10] Speaker 07:
I would answer in two ways, Your Honor.

[01:22:13] Speaker 07:
That is, everything, and the Board hasn't specified it here because there hasn't been a refusal to bargain about a particular subject, rather than a refusal to bargain about all subjects.

[01:22:25] Speaker 07:
But the evidence that the Board relied on in finding control, I think, be if I can be confident they will have to bargain about it.

[01:22:34] Speaker 07:
So the speed of the line, clearly a term and condition of employment.

[01:22:39] Speaker 05:
Now, as Mr. Heller has pointed out... What terms and conditions did the union ask to bargain about?

[01:22:48] Speaker 07:
There was simply a general refusal to bargain.

[01:22:50] Speaker 07:
The way this statute somewhat peculiarly works is in order to raise the issue which Browning Ferris wanted to bring to this court, they had to engage in what's called a technical refusal to bargain, i.e.

[01:23:01] Speaker 07:
a complete refusal to bargain.

[01:23:02] Speaker 03:
But the union controlled that, right?

[01:23:03] Speaker 03:
The union must have said, hi, here we are.

[01:23:07] Speaker 03:
We'd like to negotiate with you over

[01:23:09] Speaker 07:
Terms and conditions of employment.

[01:23:12] Speaker 07:
So there was a general demand, as there usually is.

[01:23:16] Speaker 07:
Then it would be up to the parties to see if they could agree about what the terms and conditions were that BFI controlled, or if they couldn't agree, then a case might have to go to the board.

[01:23:26] Speaker 07:
That's consistent with the long history of joint employment.

[01:23:30] Speaker 07:
That is, the doctrine is not new, and the problem is not new.

[01:23:35] Speaker 04:
So if you have... What if I can't read this, after reading this board's decision, I can't figure out exactly what the terms and conditions are that they're considered a joint employer for?

[01:23:50] Speaker 04:
Is that a problem?

[01:23:52] Speaker 07:
That would be unfortunate, but I think a reasonable employer could read the decision and find that.

[01:24:00] Speaker 07:
And the consequences of any confusion about that would be a refusal to bargain on a particular subject.

[01:24:07] Speaker 07:
If the union insisted on bargaining on that subject, there would be a refusal to bargain charge.

[01:24:12] Speaker 07:
The employer might be found to have refused to bargain, and the remedy would be simply bargain.

[01:24:18] Speaker 07:
So the consequences of being an employer are simply to bargain about what you control.

[01:24:25] Speaker 07:
They're not to reach agreement.

[01:24:27] Speaker 07:
They're simply to bargain.

[01:24:28] Speaker 07:
And the remedy for not doing so is, again, simply an order that you bargain.

[01:24:32] Speaker 03:
Well, it's not always simply to bargain.

[01:24:34] Speaker 03:
They might have said, no, that's not something that we're a joint employer for, and we're putting this thing in place that we have.

[01:24:39] Speaker 03:
And then the order would come from the board, and they would have to retroactively

[01:24:43] Speaker 03:
unravel and unscramble something they've had in place for three years.

[01:24:46] Speaker 03:
So it's not always just go talk.

[01:24:49] Speaker 03:
It actually can have some real hard impacts on the employer.

[01:24:53] Speaker 07:
There is a possibility of unilateral change.

[01:24:55] Speaker 07:
But all of us who practice labor law know that that is a constant issue, even in a bargaining relationship where there's only two parties.

[01:25:05] Speaker 07:
The parties often disagree about what the scope of the duty to bargain is.

[01:25:09] Speaker 07:
So it's not a new problem, and it's not a new problem in the joint employment context.

[01:25:14] Speaker 07:
It's an issue along the borders which always exists and can be adjudicated.

[01:25:20] Speaker 03:
Do you have a position on whether the contract can be terminated at will once they're a joint employer?

[01:25:28] Speaker 07:
I think there would be an argument, and our client might make the argument should they be found to be a joint employer, that they would have to bargain about what's essentially a decision not to terminate their employment, but necessarily, since they could be relocated to another location, but to either terminate their employment or relocate them.

[01:25:53] Speaker 03:
Thank you very much.

[01:26:01] Speaker 03:
All right, Mr. Dittelberg, we'll give you three minutes.

[01:26:04] Speaker 06:
Thank you, Your Honor.

[01:26:06] Speaker 06:
So to address the question of what the common law and Taft-Hartley require, just to reiterate, with respect to active control, it should be the center of gravity of analysis.

[01:26:17] Speaker 06:
It has been the center of gravity of analysis under the common law and under this Court's cases, where it has looked most closely to what the actual practice of the relationship between the contracting parties is.

[01:26:31] Speaker 06:
with respect to this bucket of indirect control.

[01:26:35] Speaker 06:
There is no support for this concept in the common law.

[01:26:38] Speaker 06:
The board has cited to none.

[01:26:40] Speaker 06:
They've cited to one Fourth Circuit case, which was not even a joint employer case.

[01:26:45] Speaker 06:
and in unpacking this concept of indirect control.

[01:26:48] Speaker 06:
We have the notion of control that is based on requiring the customer to fundamentally change its business operations, which Aurora packing has found is not control.

[01:27:02] Speaker 06:
Some of the concepts that the panel has alluded to.

[01:27:05] Speaker 06:
You know, line speed is amount.

[01:27:08] Speaker 06:
You know, we want to buy, you know, essentially this amount of labor which we need to efficiently run our business.

[01:27:17] Speaker 06:
That's what, you know, those kinds of factors are not what this court has found to be salient control factors.

[01:27:23] Speaker 03:
And what if, just to be clear, if under the contract, Company X would say to lead point ten times a day,

[01:27:33] Speaker 03:
Hey, lead point supervisor, go tell that person to stand somewhere else.

[01:27:37] Speaker 03:
Hey, lead point supervisor, tell them to start with their left web on the right hand, because we've found through studies that that's more efficient to do it that way.

[01:27:44] Speaker 03:
Hey, lead point supervisor, that person needs to be removed.

[01:27:48] Speaker 03:
They're not fast enough.

[01:27:50] Speaker 03:
Hey, lead point supervisor, they're not supposed to take their breaks till they clean up that area.

[01:27:56] Speaker 03:
If you have all that indirect, would you agree at least that type of indirect control can be factored in or not?

[01:28:04] Speaker 06:
I think that goes to what the court in North American Van Lines said, monitoring the ends of worker performance.

[01:28:11] Speaker 06:
Making sure that you get the benefit of efficient work to get the job done at the end of the day.

[01:28:17] Speaker 03:
At the end of the day.

[01:28:18] Speaker 03:
This is throughout the day.

[01:28:19] Speaker 03:
Your position is that cannot be considered under the common law, as long as you launder it through someone you've hired.

[01:28:28] Speaker 03:
It's not relevant at all to whether they're a joint employer.

[01:28:31] Speaker 06:
There's a difference between giving direct orders and pointing things out, which is, I think, not pointing out.

[01:28:38] Speaker 03:
I'm telling them we know the contract says that we get to have input.

[01:28:44] Speaker 03:
And 100% of the time when we do that, LeadPoint executes it.

[01:28:47] Speaker 03:
That's the understanding.

[01:28:49] Speaker 06:
We get to have input to our service provider who wants to make us happy as an independent business exercising its discretion.

[01:28:58] Speaker 03:
On the day-to-day movements and activities of individual workers day in and day out.

[01:29:03] Speaker 03:
To be clear, your position is no.

[01:29:04] Speaker 03:
That doesn't count.

[01:29:05] Speaker 06:
No.

[01:29:05] Speaker 06:
I mean, I think close monitoring of ends along those lines is... That's not the end.

[01:29:11] Speaker 03:
That's the work.

[01:29:12] Speaker 03:
It's not the end.

[01:29:13] Speaker 03:
That's the work itself.

[01:29:14] Speaker 06:
Well, I mean, if it sees something, a piece of garbage that should have been picked up that goes towards the end of efficient performance, I think they can point that out.

[01:29:27] Speaker 06:
And then we point, as an independent business, as to decide how it's going to respond.

[01:29:32] Speaker 09:
I would wonder whether ocean would require that.

[01:29:35] Speaker 06:
And in fact, yes, I mean, there could be some statutory requirements.

[01:29:39] Speaker 03:
I mean, one of the other issues with the board's... Is OSHA, is Garnet and Ferris the employer for OSHA purposes when all this trash and stuff is on the ground in the court site?

[01:29:47] Speaker 06:
It is the premises owner, so it does have certain statutory responsibilities.

[01:29:52] Speaker 03:
I can't remember, does OSHA use the word employer?

[01:29:54] Speaker 06:
I don't know, Your Honor, but this is one of the problems with the test.

[01:30:00] Speaker 06:
You know, again, on that passage on 382 of the appendix, they say merely owning or controlling the premises.

[01:30:07] Speaker 06:
Well, you know, if that's the standard, everybody is going to be a joint employer.

[01:30:12] Speaker 03:
You know, everybody who wants to... But doesn't the common law, I mean, it says where the work performed is one of its factors.

[01:30:17] Speaker 06:
Well, in the comment to 220L, it distinguishes between following the rules of premises liability, the kinds of rules that wouldn't distinguish between any visitor to the property, which is where the focus of Browning Ferris' safety rules go to, versus very specific directives to an employee.

[01:30:40] Speaker 03:
So just to be clear, second 220, the restatement, second E. I'm not talking about an example here.

[01:30:46] Speaker 03:
One E says whether the employer or the workman there, it's talking about the independent contractor, supplies the instrumentalities, tools, and place of work for the person doing the work.

[01:31:00] Speaker 03:
So are you saying that the board can consider the place of the work where the work is done just as a factor or not under the common law?

[01:31:09] Speaker 06:
If you look at the commentary, there is a distinction between sort of generally applicable premises liability and premises standards, the mere fact that you're on the premises and contrasting that with employment policies that do distinguish between employees and other visitors and basically anyone who has to be on the property.

[01:31:31] Speaker 06:
You know, there are OSHA and other standards that lead point as agents of a contractor, just as visitors to the property, would have to follow.

[01:31:41] Speaker 03:
So that might just be a holder from the tort liability part of the test.

[01:31:45] Speaker 03:
We're not sure about where it happens for that in a way that we may not for this inquiry.

[01:31:52] Speaker 06:
So the testant's application has to be drained of economic influence.

[01:31:58] Speaker 06:
Again, the board says that it's not applying or considering economic influence, but it plainly is.

[01:32:05] Speaker 06:
The at-will contract is not controlling the employees.

[01:32:09] Speaker 06:
It's a sort of Damocles over the contractor.

[01:32:13] Speaker 06:
Requests, customer preferences and the like are all

[01:32:18] Speaker 06:
you know, not those probative types of control.

[01:32:22] Speaker 06:
And again, just lastly, you know, the range of forms of control that this Court has found to be consistent and other Courts have found to be consistent with contractor relationships.

[01:32:35] Speaker 06:
customer preferences, monitoring, evaluating, and statutory requirements, evaluating pre-performance qualifications, and the like.

[01:32:44] Speaker 06:
I think a lot of the questions in this case can be answered by the court's existing controlled jurisprudence.

[01:32:49] Speaker 03:
Thank you.

[01:32:50] Speaker 03:
Thank you very much.

[01:32:51] Speaker 03:
The case is submitted.