[00:00:05] Speaker 00:
industries of California Inc.

[00:00:07] Speaker 00:
doing business of BFI New Bay Island Recycling Petitioner versus National Labor Relations Board.

[00:00:14] Speaker 00:
Mr. Didelberg for the petitioner, Ms.

[00:00:16] Speaker 00:
Burdick for the respondent, and Mr. Becker for the

[00:00:32] Speaker 04:
Good morning and may it please the court, Joshua Diddleberg appearing for Browning Ferris.

[00:00:38] Speaker 04:
Chairman Ring in his letter and the other board materials indicate that the board has initiated a process of joint employer rulemaking, that this process will be comprehensive and that they intend to issue an NPRM as soon as possible, Chairman Ring indicated, certainly by this summer.

[00:00:58] Speaker 04:
Now, no one can say what the precise outcome of that process will be, and nor will those rules literally govern this case.

[00:01:09] Speaker 04:
However, the Browning Ferris landscape is likely to significantly change.

[00:01:16] Speaker 04:
Not only is the joint employer common law standard likely to differ in some respect from the board's current test,

[00:01:25] Speaker 04:
But also, as Chairman Ring indicated, the board is going to be addressing, I quote, it's going to provide clear and useful guidance to its stakeholders regarding the contours of a joint employer relationship, which many believe Brown and Ferris expressly left undefined, close quote.

[00:01:44] Speaker 04:
Those undefined contours seemingly would include the kind of intertwined deficiencies that we raised in our merits briefing and were addressed in the Browning-Ferris dissent issues such as what are the parties actually supposed to bargain over?

[00:02:02] Speaker 04:
How does control get reallocated if it even can be?

[00:02:05] Speaker 03:
If a new prospective rule were to issue four months from now,

[00:02:13] Speaker 03:
You would still have this unfair labor practice determination, and that wouldn't go away, correct?

[00:02:20] Speaker 04:
Well, if the case were remanded, one would expect that they would reconcile this case with their rulemaking efforts.

[00:02:30] Speaker 06:
Suppose the rule that

[00:02:35] Speaker 06:
emerges from the rulemaking is essentially the same as existed before your case.

[00:02:44] Speaker 06:
Okay?

[00:02:44] Speaker 06:
Yes.

[00:02:46] Speaker 06:
If that rule were applied to Browning First, why would that be retroactive rulemaking?

[00:02:54] Speaker 06:
If the only thing the Board did was reinstitute the situation that existed prior to their decision in your case, I don't see how that's retroactive.

[00:03:06] Speaker 04:
No, I don't think it would be retroactive.

[00:03:07] Speaker 04:
In addition to the common law standard, they may also, again, address issues that they left undefined, which we raised in our briefing, such as the basic operation of any standard, which could have an impact on the outcome of the case.

[00:03:23] Speaker 03:
I just want to get back to my question.

[00:03:25] Speaker 03:
And that is, again, I assume there's a rule in four months or so that's prospective only.

[00:03:31] Speaker 04:
Right.

[00:03:32] Speaker 03:
You already have a board-objudicated finding of an unfair labor practice and a remedy.

[00:03:39] Speaker 03:
Are you aware of any situation in which a prospective-only rule was then held by the board to undo a past closed unfair labor practice determination?

[00:03:52] Speaker 04:
No, but at the same time, neither the board nor the intervener has cited any authority where, if this case were remanded, that the board couldn't hold it in abeyance.

[00:04:04] Speaker 03:
Well, this is my first time, again, just assuming all kinds of hypothetical is here, but the board has changed rules in a variety of areas.

[00:04:13] Speaker 03:
They evolve, they change over time, they identify new concerns and factors, they take away factors.

[00:04:20] Speaker 03:
And they do those things prospectively, but past determinations still have to be dealt with on their own terms.

[00:04:29] Speaker 03:
And I should think your company would actually like to have an answer to its petition.

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as to whether the finding of an unfair labor practice was right or wrong.

[00:04:41] Speaker 03:
I assume you still would like an answer to that?

[00:04:43] Speaker 04:
Yes, I mean, certainly.

[00:04:44] Speaker 03:
You could dismiss your petition from this court if you didn't want an answer from this court.

[00:04:48] Speaker 04:
No.

[00:04:48] Speaker 04:
No, we want an answer.

[00:04:49] Speaker 04:
I think the expectation and the reason that we're filing this motion is that the board is plainly dissatisfied with its current approach.

[00:04:59] Speaker 04:
And the likelihood is that it's going to develop a different approach

[00:05:04] Speaker 04:
either as to the common law standard itself or to these broader issues, you know, that is going to be more aligned with my client's interest.

[00:05:11] Speaker 06:
That may be a fair inference, but one thing that's clear from the chairman's letter to the senators is that the board has decided that this is an issue better handled in rulemaking than in adjudication.

[00:05:28] Speaker 06:
And he says that in the letter.

[00:05:30] Speaker 06:
Now, whether he's speaking for a majority of the board or not, I don't know.

[00:05:35] Speaker 06:
But he's certainly speaking for himself, which raises an interesting question because you argued in your brief that the review that this court conducts of the board's determination of what the common law was in 1947

[00:05:51] Speaker 06:
is de novo.

[00:05:52] Speaker 06:
Yes.

[00:05:53] Speaker 06:
Right?

[00:05:54] Speaker 06:
The board argued otherwise.

[00:05:56] Speaker 06:
Right.

[00:05:56] Speaker 06:
But let's suppose that your view prevailed and we go ahead and decide this case despite the pendency of the rulemaking.

[00:06:06] Speaker 06:
Does that mean that from that point on the rulemaking is short-circuiting?

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Because it doesn't matter what the board says.

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We have pronounced de novo what the law of 1947 was.

[00:06:20] Speaker 06:
And that's controlling in the future, is it not?

[00:06:26] Speaker 04:
Yeah, I guess it would depend on whether your decision is more diagnostic rather than decisional, you know, whether you're saying to the board, you know, what they can't do or giving them parameters of what they can do versus, you know, potentially making a definitive statement of what the common law requires.

[00:06:42] Speaker 06:
Suppose we said there was no such thing as

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inferred control, or indirect control, or potential right to control.

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The common law was it has to be direct control.

[00:06:59] Speaker 06:
Suppose we said that.

[00:07:00] Speaker 06:
And then the other complication is, I'd like you to comment on this, that every case, every board case potentially can be heard by this court.

[00:07:13] Speaker 06:
The other circuits, you know, it's a geographic determination because the boards here, the venue is proper and this court can review every single board case depending on who.

[00:07:26] Speaker 06:
If the unions start losing because of the new rule, they can file for review in this court and then our court, unless it's in bank or the Supreme Court reverses, we're bound by

[00:07:41] Speaker 06:
a ruling about what the common law was in 1947 in every case.

[00:07:48] Speaker 04:
Yeah.

[00:07:48] Speaker 04:
I mean, if indeed the board goes ahead with rulemaking, which it certainly seems that they're going to do, presumably somewhere at some time that rulemaking is going to be reviewed, possibly in this court.

[00:08:01] Speaker 04:
And I guess the consideration for the court is in light of this rulemaking effort, you know, which again, I understand

[00:08:08] Speaker 04:
to not simply address the common law standard, but to address a more comprehensive set of operational principles, other scenarios, et cetera, whether it makes sense for the court to issue a decision, given that they're going to be doing that comprehensively.

[00:08:27] Speaker 04:
And potentially, that effort will be reviewed at some point.

[00:08:36] Speaker 03:
So your position is that the board gets no deference to its determination of the scope of common law, correct?

[00:08:44] Speaker 04:
That this court is not required to defer to the board's common law.

[00:08:49] Speaker 03:
It's on the content of the common law.

[00:08:51] Speaker 03:
Yes.

[00:08:51] Speaker 03:
Right.

[00:08:52] Speaker 03:
And that would be the same whether they did it through adjudication or rulemaking?

[00:08:57] Speaker 04:
Yes.

[00:08:58] Speaker 03:
And then one thing I'm curious about is, it seems clear from Supreme Court decision making that the board's definition of employer cannot be broader than what the common law recognized.

[00:09:13] Speaker 04:
Yes.

[00:09:13] Speaker 03:
Could they say

[00:09:16] Speaker 03:
Here's where we think the common law circle is, but for some of the operational, practical, technical reasons, difficulties of doing collective bargaining, we're not going that far.

[00:09:29] Speaker 03:
We're drawing the circle a bit smaller.

[00:09:31] Speaker 03:
Can they go that direction?

[00:09:33] Speaker 03:
Or must they always use the definition of employer to the fullest except for the common law, not a step over the line and not a step under the line?

[00:09:46] Speaker 04:
I mean, certainly they have to act compatibly with what the common law is, which ultimately is going to be a judge-made enterprise.

[00:09:54] Speaker 04:
You know, beyond that, I think- Well, I don't know what you mean by compatible.

[00:09:57] Speaker 03:
They can't overshoot.

[00:09:58] Speaker 03:
They can't overshoot.

[00:09:59] Speaker 03:
Their senior position is they can't overshoot the common law.

[00:10:01] Speaker 04:
Right.

[00:10:01] Speaker 03:
They can't have a broader definition of employer.

[00:10:04] Speaker 03:
Right.

[00:10:04] Speaker 03:
But do they have to sweep in everybody that the common law might say is an employer, or could they decide

[00:10:12] Speaker 03:
that it would be impractical, collective bargaining wouldn't work in particular circumstances or particular lines or factors and so we're going a bit narrower.

[00:10:24] Speaker 03:
Is that within their bailiwick or must they?

[00:10:30] Speaker 03:
use the full common law definition?

[00:10:32] Speaker 04:
I mean, I think potentially, yes.

[00:10:33] Speaker 03:
I mean, it can be, you know, obviously a bit of a debate in terms of what the common law requires in this area, but... Well, I think in the case they had a two-pronged problem was, okay, even if we decide you're an employer, we're going to look and see whether or not collective bargaining is practical, can practically work.

[00:10:51] Speaker 03:
You didn't ever challenge that aspect of it, so that seems to me

[00:10:56] Speaker 03:
Since you didn't challenge it, you must agree that they can go narrower, they just can't go broader.

[00:11:01] Speaker 06:
Yes.

[00:11:03] Speaker 06:
You argued that the rule that came down in your case should not be applied to Browning First retroactively.

[00:11:13] Speaker 06:
Yes.

[00:11:13] Speaker 06:
Right?

[00:11:14] Speaker 06:
What's your view?

[00:11:16] Speaker 06:
Would the rulemaking affect that argument one way or the other?

[00:11:20] Speaker 04:
Well, I don't think so.

[00:11:21] Speaker 04:
I mean, if the case were remanded and the court wanted to reconcile, you know, a disposition of this case with the rulemaking, I mean, it seems to me one thing that they could do on remand is effectively quarantine this case, you know, is essentially decide for equitable reasons and reasons

[00:11:39] Speaker 04:
given the fact that there are subsequent developments, that they're not going to make this doctrine retroactive to these parties, which I think would effectively freeze the case and quarantine it.

[00:11:52] Speaker 04:
And then going forward, the rulemaking standard would apply to cases.

[00:11:58] Speaker 03:
Thank you.

[00:12:00] Speaker 04:
Thank you.

[00:12:11] Speaker 01:
May it please the court with verdict appearing for the National Relations Board.

[00:12:15] Speaker 01:
Good morning, Your Honors.

[00:12:17] Speaker 01:
I'd like to begin by restating the board would like the court to continue to process this case in the regular course and reach a decision on the merits.

[00:12:25] Speaker 01:
We have to remember that this case involves an election that was held in 2014 in a unit of 200 employees who voted for representation and still waiting there.

[00:12:35] Speaker 01:
resolution of their bargaining rights.

[00:12:38] Speaker 01:
And here we have a situation where the board, as we know, issued a rule in adjudication.

[00:12:44] Speaker 01:
The norm is retroactive application.

[00:12:46] Speaker 01:
Nothing else has been argued to this point.

[00:12:49] Speaker 06:
This case... It's not the norm in the Fourth Circuit anymore, is it?

[00:12:54] Speaker 01:
I haven't looked at that, Your Honor.

[00:12:57] Speaker 06:
But here with adjudication, in this case, the other side didn't even... I'm talking about board decisions in the Fourth Circuit now,

[00:13:05] Speaker 06:
They're not, I think this is right, they're not just accepting that the board decision is retroact.

[00:13:14] Speaker 01:
Well, there's a test for retroactivity and the test that was applied here by the board wasn't rebutted.

[00:13:21] Speaker 01:
The presumption of retroactive application wasn't rebutted.

[00:13:24] Speaker 06:
Well, since you're on that, are you familiar with Landgraf?

[00:13:28] Speaker 06:
Supreme Court's opinion on retroactivity?

[00:13:32] Speaker 06:
No.

[00:13:32] Speaker 06:
This is what the Court says.

[00:13:34] Speaker 06:
It says, the Court must ask whether the new provision, re-rule, attaches new legal consequences to events completed before its promulgation.

[00:13:49] Speaker 06:
Right?

[00:13:49] Speaker 06:
Right.

[00:13:49] Speaker 06:
So there's no question that

[00:13:54] Speaker 06:
In this case, applying the Browning-Ferris decision would be retroactive.

[00:14:03] Speaker 06:
But I want to ask you also, let's suppose that the board and the rulemaking goes back to the situation that existed before Browning-Ferris.

[00:14:13] Speaker 06:
And if you read Landgraf, applying that rule,

[00:14:18] Speaker 06:
from a rulemaking would not be retroactive because it's not attaching new legal consequences to events that already occurred.

[00:14:26] Speaker 06:
What it's doing is, in fact, putting the situation back to where it was.

[00:14:32] Speaker 01:
Yes, Your Honor.

[00:14:32] Speaker 01:
I'm familiar with that principle.

[00:14:34] Speaker 01:
I wasn't familiar with the case name.

[00:14:36] Speaker 01:
But in that situation, there wouldn't have been.

[00:14:39] Speaker 01:
A reasonable reading would be that there would be no retroactive effect on the prior rights of the parties.

[00:14:47] Speaker 01:
There wouldn't be a change.

[00:14:48] Speaker 01:
And that would be a different situation.

[00:14:51] Speaker 06:
If the Browning-Ferris case was still pending before the board, what I'm suggesting is that if the rulemaking winds up

[00:15:02] Speaker 06:
that in a situation that existed before the decision in this case, applying that new rule to Browning-Ferris would not be retroactive rulemaking?

[00:15:13] Speaker 01:
I think that that's a reasonable reading of the test.

[00:15:17] Speaker 01:
Of course, the board hasn't determined that, but from my opinion, that's a reasonable reading.

[00:15:20] Speaker 01:
But here, it's very clear that we have a case where the rule was issued or clarified in adjudication.

[00:15:26] Speaker 01:
The norm in this case is retroactive application.

[00:15:30] Speaker 01:
And to some extent, their motion attempts to escape that effect and come under cover of gaining some benefit from the future rule that should be prospective.

[00:15:43] Speaker 06:
Suppose we agree with Browning-Ferris that our review has been over about what the law was in 1947, and we go ahead and decide this case according to

[00:15:58] Speaker 06:
you were urging, wouldn't that short circuit the rulemaking?

[00:16:05] Speaker 06:
Because now we've pronounced what the rule is.

[00:16:09] Speaker 01:
Well, it would be a consideration in the board as it proceeds with rulemaking intends to consider all precedent, all factors, and all comments from parties.

[00:16:17] Speaker 01:
And so that would be one thing it would be considering, but it might not be the total sum of the rulemaking process.

[00:16:23] Speaker 01:
But it would be something the board, and as Chairman Ring said in his letter, the board is open and he is open to

[00:16:30] Speaker 01:
hearing all parties, all positions, all considerations as they move towards rulemaking.

[00:16:36] Speaker 06:
Where would the rule be reviewed?

[00:16:40] Speaker 06:
Where would judicial review be for this rule that comes out?

[00:16:44] Speaker 01:
In the past, it went to the district court first in the prior rulemaking.

[00:16:47] Speaker 06:
What court?

[00:16:50] Speaker 06:
The rule.

[00:16:52] Speaker 06:
After the rulemaking, the rule comes out and somebody wants to challenge it, right?

[00:16:57] Speaker 06:
Are there any options other than this court?

[00:17:01] Speaker 01:
Well, they would normally go to the district court first, and typically the other side would seek to adjoin it if the board hadn't itself independently decided to hold the rule.

[00:17:11] Speaker 06:
Oh, it wouldn't be direct review in the school?

[00:17:15] Speaker 01:
That's my understanding, it wouldn't actually, yeah, it would go to the district court first, and that's the procedure.

[00:17:21] Speaker 01:
In the American Hospital case, the Supreme Court case, the board filed a brief in that case that set out the entire history of the healthcare rulemaking, which is the most analogous to the one that the board is planning on embarking on here.

[00:17:35] Speaker 01:
And you can see the whole entire process and procedural history it went through.

[00:17:41] Speaker 01:
But I want to make clear, though, that Chairman Ring's letter, although he stated clearly that the majority of the board is committed to going to rulemaking in the process of going through internal

[00:17:53] Speaker 01:
preparations to do so.

[00:17:55] Speaker 01:
The statements in his letter were his own, but the one statement that is clear is that he's keeping an open mind, and I just wanted to make sure that I have that on the record, given your discussion.

[00:18:07] Speaker 06:
Are you suggesting that it might not be a rulemaking?

[00:18:10] Speaker 01:
Well, they're committed to rulemaking, and they anticipate, as his letter stated, they anticipate issuing a notice of proposed rule sometime this summer.

[00:18:20] Speaker 01:
That statement was made in early June.

[00:18:24] Speaker 01:
But I want to emphasize, though, that to reiterate, the board really does believe that this court should proceed to decision on the merits, and there's no reason other than that to even consider retroactive applications.

[00:18:38] Speaker 06:
When you say the board wants to, I mean, did you take a poll of the board members?

[00:18:45] Speaker 01:
I'm standing before you, your honor.

[00:18:48] Speaker 01:
I'm authorized to represent the board in the board's position that the board would like this case decided.

[00:18:53] Speaker 06:
Yeah, well usually when you stand before us, the board has made a decision in writing and you're defending an order and an opinion.

[00:19:01] Speaker 06:
But we don't have any order and we don't have any opinion regarding whether the board wants to go forward with this case while the rulemaking is pending.

[00:19:09] Speaker 06:
So I'm asking you, you know, has the board voted on that issue?

[00:19:16] Speaker 01:
Well, I'm post-decisional counsel, and the general counsel is the one who prosecutes and comes and defends or seeks enforcement in this court.

[00:19:27] Speaker 01:
I am not privy to the board deliberations and such things as votes.

[00:19:31] Speaker 06:
So you're stating the general counsel's view.

[00:19:41] Speaker 01:
I believe if the board consulted with the general counsel, if they had a different view, we would have heard it.

[00:19:52] Speaker 01:
But the position of the papers stands.

[00:19:58] Speaker 01:
And I do want to note that when we're talking about what happens if this case were remanded, if it were remanded on the merits, of course the board would proceed with following the court's instructions and limiting its decisional position and all of its determinations in line and consistent with that decision.

[00:20:17] Speaker 01:
Here, if this court were to remand on the basis of

[00:20:23] Speaker 01:
The news that a rule may be coming out, rulemaking may be undertaken.

[00:20:28] Speaker 01:
There's many different options the board could potentially has and has discretion in deciding how to handle its pending cases.

[00:20:35] Speaker 01:
And I just want to note that back in the...

[00:20:38] Speaker 01:
Healthcare rulemaking, which is the most analogous to here and very informative.

[00:20:43] Speaker 01:
The board shortly after the notice of proposed rule issued its decision in St.

[00:20:46] Speaker 01:
Vincent in which it decided that it would not hold cases because it didn't want to hold parties' rights in limbo and wanted to go ahead and decide them and decided the best course was to decide those cases under extat law.

[00:21:01] Speaker 01:
So it applied an old disparity of interest test to healthcare unit determinations.

[00:21:05] Speaker 01:
And it did so during the entire rulemaking procedure.

[00:21:08] Speaker 01:
and actually after the rulemaking procedure through the multiple phases of court review.

[00:21:13] Speaker 01:
So the idea that this case, if passed, is prologue, and it might not be.

[00:21:20] Speaker 01:
If this case were remanded on the terms that the other side asks for, there's a very good chance that this case would

[00:21:26] Speaker 01:
not be able to be held and decided later under a final rule.

[00:21:31] Speaker 01:
And in fact, the Long Island case that I believe my interviewer counsel has cited, the Second Circuit rejected a situation where there was a very, very, very old case pending before the board for years and years, and it

[00:21:45] Speaker 01:
was pending throughout the rulemaking process, and when the final rule was finally upheld by the Supreme Court in American Hospital, the board applied the new rule to that case that had been pending before it, and the Second Circuit said that was an improper retroactive application of a new rule.

[00:22:02] Speaker 01:
So there is some precedent out there.

[00:22:04] Speaker 01:
The board will consider all precedent, all considerations, all guidance and instructions from this court.

[00:22:10] Speaker 01:
And it will proceed with its internal deliberations.

[00:22:14] Speaker 01:
And hopefully, the notice of proposed rule will be out as the board anticipates in the summer.

[00:22:21] Speaker 01:
And hopefully, soon after that, it will issue some guidance on how it will handle pending cases, such as it did in St.

[00:22:29] Speaker 01:
Francis.

[00:22:31] Speaker 06:
The issue whether the rule applies to pending cases is potentially – that's not the same as retroactive rulemaking, prospective rulemaking.

[00:22:46] Speaker 06:
And we've had that conversation here.

[00:22:49] Speaker 06:
But whether it applies to pending cases would be a potential subject of the rulemaking itself, wouldn't it?

[00:22:56] Speaker 01:
Well, looking back at the healthcare rulemaking, at the notice of proposed rule stage, soon after that, it issued St.

[00:23:04] Speaker 01:
Francis, which gave that guidance I just mentioned.

[00:23:07] Speaker 01:
And during the process of rulemaking, the board attempted in its second notice, after it revised due to comments, it set out a more detailed procedure for handling pending cases, which then it pulled back from, probably after Ballin, this report decision Ballin issued.

[00:23:22] Speaker 01:
But there was several

[00:23:24] Speaker 01:
different annunciations of how pending cases would be held.

[00:23:29] Speaker 01:
But the board came out right there, it believes.

[00:23:32] Speaker 01:
And it may return to that same formulation, because that's the experience.

[00:23:35] Speaker 01:
But as I've said before, the board is open to all precedent.

[00:23:39] Speaker 01:
It will review all precedent, all factors.

[00:23:42] Speaker 01:
It will take opinions from others, parties, during the rulemaking process, and attempt to arrive at a very fair handling of such matters.

[00:23:52] Speaker 02:
Thank you.

[00:23:54] Speaker 01:
And again, the board asks that please proceed to decision.

[00:24:05] Speaker 05:
Good morning, Your Honors.

[00:24:06] Speaker 05:
My name is Craig Becker.

[00:24:07] Speaker 05:
I represent the Intervenor Union.

[00:24:09] Speaker 05:
I'd like to just make two very simple points.

[00:24:13] Speaker 05:
First, this case arises out of an election which took place on April 25th, 2014, more than four years ago, in which employees who stand sorting garbage on moving lines all day voted overwhelmingly to be represented by the union.

[00:24:33] Speaker 05:
They're still waiting for that representation.

[00:24:36] Speaker 05:
Secondly, and relatedly, this motion is built on speculation piled on speculation.

[00:24:43] Speaker 05:
You have before you a statement of the chairman.

[00:24:46] Speaker 06:
I thought the question here was whether Browning-Ferris was also an employer of those 200 people on the line.

[00:24:57] Speaker 05:
That's correct, Your Honor.

[00:24:59] Speaker 06:
There's no question that the company that hired them is their employer.

[00:25:05] Speaker 05:
That's correct, Your Honor.

[00:25:07] Speaker 06:
Are you telling me that they're not bargaining with that company?

[00:25:10] Speaker 05:
I'm telling you that they are not bargaining, as we argued in the original argument, with one of the two employers who controls essential terms and conditions.

[00:25:19] Speaker 06:
They have a collective bargaining agreement.

[00:25:21] Speaker 05:
They have a right to bargain with the lead point, the supplier employer.

[00:25:27] Speaker 06:
Yeah, what was the name of it?

[00:25:28] Speaker 06:
I forgot.

[00:25:29] Speaker 05:
Lead point.

[00:25:30] Speaker 06:
Lead point.

[00:25:32] Speaker 06:
Do they have a collective bargaining agreement with the lead point?

[00:25:34] Speaker 05:
Actually, Your Honor, I can't tell you.

[00:25:36] Speaker 05:
That's not in the record, and I can't tell you that at this point.

[00:25:39] Speaker 05:
You don't know?

[00:25:40] Speaker 05:
I'm not involved in the bargaining.

[00:25:44] Speaker 05:
The important point, though, I'd like to make... You're representing the union.

[00:25:47] Speaker 05:
That's correct, Your Honor.

[00:25:48] Speaker 06:
But you don't know whether they have a collective

[00:25:51] Speaker 05:
That's correct.

[00:25:52] Speaker 05:
It's not in the record and I'm not involved in the bargaining.

[00:25:56] Speaker 05:
The important point, I think, is that we don't know what's going to happen.

[00:26:01] Speaker 05:
We have a statement of the chairman.

[00:26:03] Speaker 05:
We have no statement from the board.

[00:26:05] Speaker 03:
The only statement... So the board's already here, which Leadpoint never challenged, was for Leadpoint and Browning-Ferris to bargain together with the union as joint employers.

[00:26:19] Speaker 03:
Leadpoint never challenged it.

[00:26:23] Speaker 03:
So could you have a collective bargaining agreement just with

[00:26:27] Speaker 03:
Just a theoretical matter, is that possible if there's a board direction that they should be done jointly?

[00:26:35] Speaker 05:
It is possible.

[00:26:36] Speaker 05:
The order of the board in this case was that the parties would bargain over those terms and conditions which they control.

[00:26:42] Speaker 05:
Lead point conceivably controls some terms and conditions.

[00:26:46] Speaker 05:
Browning Ferris, as we've argued, controls some terms and conditions, very important ones, like the speed of the line on which the workers are sorting the garbage.

[00:26:56] Speaker 05:
So they each have an obligation under the board's order to bargain over those terms and conditions that they control.

[00:27:02] Speaker 03:
So even if there were just hypothetically a collective bargaining agreement with lead point, it wouldn't cover, in your view, all the terms and conditions of these employees.

[00:27:12] Speaker 05:
That's correct, Your Honor.

[00:27:15] Speaker 05:
But I think the important point for this motion

[00:27:18] Speaker 05:
is that all we know from the board itself is that they placed in their notice to OIRA that there was a possibility of rulemaking on this subject.

[00:27:30] Speaker 05:
So here's the pile of speculation.

[00:27:33] Speaker 05:
There may never be a notice of proposed rulemaking because we don't know the opinions of anyone other than the chairman.

[00:27:40] Speaker 05:
We don't know if that notice of proposed rulemaking will lead to a final rule.

[00:27:44] Speaker 05:
Sometimes they don't.

[00:27:45] Speaker 05:
We don't know what that final rule will say.

[00:27:48] Speaker 05:
We don't know if that final rule would change the rule laid out in Browning Ferris.

[00:27:55] Speaker 05:
And finally, even if it does change that rule, we don't know if it'll change the rule in a way which would be relevant to this case.

[00:28:01] Speaker 06:
As you know, we argued in the original argument... Your speculation, Board Council has just represented to us that there's going to be a rulemaking and a notice issued this summer.

[00:28:11] Speaker 05:
I think board council was being respectful of the chairman's statement, but all we have is the chairman's statement.

[00:28:19] Speaker 06:
We have the chairman's statement.

[00:28:23] Speaker 06:
has decided to conduct rulemaking.

[00:28:28] Speaker 06:
What do you have that's on the other side of that?

[00:28:31] Speaker 05:
Well, I only know what's in the public record, and the board as an institution speaks through the public record.

[00:28:37] Speaker 05:
And all the board as an institution is placed in the public record is in its regulatory agenda filed with OIRA.

[00:28:44] Speaker 05:
They say there's a possibility of rulemaking, possibility of rulemaking on joint employment.

[00:28:49] Speaker 05:
But there's a number of steps before that rulemaking is even potentially relevant here, even if it would apply retroactively.

[00:28:59] Speaker 05:
And as we argued in our original argument in this case, this case should come out the same even if they reverted back to the original standard because of the degree of direct control exercised by Browning-Farris.

[00:29:11] Speaker 05:
So when you put those two together, the fact that these workers have been waiting for over four years to bargain with an employer who controls important terms and conditions of employment, the fact that Browning Ferris concedes there won't be a direct application of any rulemaking, and the speculative steps you have to go through to

[00:29:30] Speaker 05:
to determine that that rulemaking might even be relevant to this case, we would argue that the court should proceed to decide this case on the merits.

[00:29:40] Speaker 02:
Thank you.

[00:29:40] Speaker 05:
Thank you.

[00:29:42] Speaker 02:
Mr. Dillberg has no time left.

[00:29:44] Speaker 02:
He doesn't have any?

[00:29:45] Speaker 02:
We'll give you two minutes.

[00:29:48] Speaker 06:
Before you get into your argument, do you know where pending, is there any pending legislation dealing with this issue?

[00:29:58] Speaker 04:
My understanding is that there was legislation that roughly tracked the direct control standard or the prior standard that had passed the House and I believe is pending in the Senate.

[00:30:12] Speaker 04:
I'm not aware though that it's, you know, being actively brought up.

[00:30:15] Speaker 04:
It passed the House?

[00:30:17] Speaker 04:
Yes.

[00:30:18] Speaker 04:
I believe it's called the Save Local Businesses Act.

[00:30:22] Speaker 04:
Just briefly, first of all, I presume that the chairman in his letter is accurately reflecting the state of the board, that they are going to engage in rulemaking.

[00:30:36] Speaker 04:
In Highbrand, you had a situation where even though ultimately the decision was vacated, you had two board members who expressed dissatisfaction with the current state of affairs, and Chairman Ring would be a third board member who was expressed dissatisfaction with the current state.

[00:30:52] Speaker 04:
So, I would take them at their word.

[00:30:55] Speaker 03:
In terms of whether the union could... You don't dispute, though, that rulemaking can be a long and convoluted process.

[00:31:03] Speaker 04:
It can.

[00:31:04] Speaker 04:
It can.

[00:31:07] Speaker 04:
In terms of bargaining, it's certainly possible for the union to bargain with Leadpoint based on if Leadpoint were to accept the board's finding.

[00:31:21] Speaker 04:
There's nothing in the record in terms of what's actually happened, so I can't speak to that.

[00:31:26] Speaker 04:
Finally, I don't minimize the impact of this case on the individual litigants, including Browning Ferris.

[00:31:34] Speaker 04:
I think the reality, though, is that everyone understands that in overturning a 30-year standard in a matter of some importance, that it's going to take some time for the state of the law to reach a point of repose.

[00:31:49] Speaker 03:
Do you have a sense of, you may not know, but do you have a sense of how many other decisions were decided under the test adopted in your case?

[00:32:00] Speaker 04:
Well, I believe, yes.

[00:32:03] Speaker 04:
To my understanding, the board has issued one additional joint employer case, which was actually cited in our briefing.

[00:32:11] Speaker 04:
I think it's called retro-environmental or something along those lines.

[00:32:14] Speaker 04:
And anecdotally, I think there are a handful of cases with joint employer implications that are currently pending before the board.

[00:32:23] Speaker 04:
That's my understanding.

[00:32:26] Speaker 04:
Thank you.

[00:32:27] Speaker 02:
Thank you very much.

[00:32:28] Speaker 02:
The case is submitted.