[00:00:00] Speaker 03: Phase number 21-1093, Sanitary Truck Drivers and Helpers, Local 350, International Brotherhood of Teamsters, Petitioner, versus National Labor Relations Board. [00:00:12] Speaker 03: Mr. Sharma for the petitioner, Mr. Atrapatsya for the respondent. [00:00:20] Speaker 00: May it please the court. [00:00:21] Speaker 00: My name is Munee Sharma. [00:00:22] Speaker 00: I represent Teamsters Local 350 in this matter. [00:00:25] Speaker 00: I have reserved two minutes of my time for rebuttal. [00:00:27] Speaker 00: This is, of course, not the first time this court has seen this case. [00:00:30] Speaker 00: In its earlier decision, this court agreed with the board's determinations that the common law of agency dictates its joint employer analysis. [00:00:38] Speaker 00: Now for 30 years prior to Browning Ferris 1, the board's joint employer standard did not consider reserved control and indirect control. [00:00:46] Speaker 00: That Browning Ferris 1 changed the board's joint employer standard by allowing for it to consider evidence of reserved control and indirect control. [00:00:54] Speaker 00: And that both of those forms of control are relevant to the common law analysis [00:00:59] Speaker 00: The court remanded the case to the board with clear instructions. [00:01:03] Speaker 00: First, clarify with precision what forms of indirect control are relevant to an employment analysis under the common law. [00:01:11] Speaker 00: And second, to apply the second step of the Browning-Ferris Fund standard, that is whether the employer at issue possesses sufficient control over the employee's essential terms and conditions of employment to permit meaningful collective bargaining. [00:01:25] Speaker 00: In addressing the company's retroactivity argument, [00:01:28] Speaker 00: The court held it to be premature to consider that issue because it cannot evaluate reliably whether expectations were unsettled by the new standard prior to the board's clarification of the standard and application of that standard. [00:01:42] Speaker 00: However, the court did suggest that in clarifying the indirect control element and applying the second step of the analysis, the board keep in mind certain retroactivity and principles. [00:01:52] Speaker 00: On remand, the board failed to follow these clear instructions and instead recast [00:01:57] Speaker 00: Brown and Ferris won as holding that reserved and indirect control standing alone can be determinative of joint employer status rather than simply forms of control that may be considered. [00:02:08] Speaker 00: It further mischaracterized the predecessor standard when it claimed that that standard did consider reserved and indirect control, but would not allow it to be determinative without additional evidence of direct and immediate control. [00:02:20] Speaker 00: Based on these mischaracterizations, the board made several errors that warrant a remand. [00:02:25] Speaker 00: The board's mischaracterizations justified its decisions to both not clarify the indirect control factor and to not apply the Browning-Farris I standard retroactively, because it claimed that any clarification would incorporate the change in what evidence may be determinative standing alone. [00:02:42] Speaker 00: And it said that even though the board in this court said that this was not such a case, because there was evidence of direct and exercise control, as well as reserved and indirect control. [00:02:53] Speaker 00: It also, the board also justified it. [00:02:55] Speaker 04: I'll ask you one question. [00:02:58] Speaker 04: It's always formulated as direct and immediate control. [00:03:03] Speaker 04: What does immediate mean? [00:03:06] Speaker 00: I understand that to me, not what the board sometimes is referred to as limited and routine control. [00:03:16] Speaker 04: So it doesn't seem like a good word for non-limited or non-routine to me. [00:03:22] Speaker 00: A lot of these I don't think are great words. [00:03:27] Speaker 00: But that is my understanding when they say direct and immediate that it's the both direct as in they're the ones providing the direction and that they're providing it in a way that gets to the manner and means of the work. [00:03:47] Speaker 01: Thank you. [00:03:48] Speaker 00: I don't think the board has ever really explained what they mean by that term. [00:03:54] Speaker 01: Help me understand your argument about, I guess it's really, I think, kind of an argument about order of decision making. [00:04:05] Speaker 01: I mean, the board had to determine whether to apply the rule from Browning Ferris 1 retroactivity. [00:04:16] Speaker 01: retroactive, right? [00:04:20] Speaker 01: So why couldn't the board decide to do that analysis first here? [00:04:33] Speaker 00: Sure. [00:04:34] Speaker 00: Because in our position is that it can't do that analysis without knowing what the new standard is. [00:04:43] Speaker 00: It's the same reason the court didn't [00:04:44] Speaker 00: do that analysis. [00:04:46] Speaker 00: It said it was premature to do it because they didn't know what the new standard was without the clarification on the indirect control element or even if Browning Ferris is a joint employer under that analysis. [00:05:00] Speaker 00: And without knowing if Browning Ferris is even a joint employer, if the board would even find them to be a joint employer, you can't determine whether [00:05:08] Speaker 00: any expectations have been unsettled. [00:05:10] Speaker 00: They very well might not have because Browning Ferris might not be a joint employer under the name. [00:05:15] Speaker 01: The position that the board had no authority to change its mind about what the standard should be. [00:05:25] Speaker 01: So in other words, that the board had no authority to say, you know, we think that Browning Ferris 1 was wrong. [00:05:33] Speaker 01: So we are going to [00:05:37] Speaker 01: just go back to the old standard. [00:05:41] Speaker 01: And so the board had no authority to do that. [00:05:48] Speaker 01: Yet would the board have been, I guess, acting ultra big iris if it had just done that? [00:05:54] Speaker 01: That's my question. [00:05:58] Speaker 00: Could it have just done that? [00:05:59] Speaker 00: It possibly could have decided that [00:06:04] Speaker 00: that the Browning Ferris 1 standard was not the right standard. [00:06:08] Speaker 00: It did not do it. [00:06:11] Speaker 00: It's not what it said. [00:06:11] Speaker 01: But so if you answer yes to that question that they could have done that, then I don't understand how you have a case anymore. [00:06:20] Speaker 00: Yeah. [00:06:20] Speaker 00: So then I was going to say the second part is that even if they could do that, they couldn't go back to simply the old standard as they described it. [00:06:30] Speaker 00: Because this court, it said in the Browning Ferris decision, [00:06:34] Speaker 00: that the common law dictates the joint employer analysis, that the common law is defined by the judiciary and can't be recast by the board, and that the common law takes into account indirect control and reserve control, and that the prior standard didn't do that, which would make the prior standard inconsistent with the common law. [00:06:56] Speaker 00: And the board here justifies its reliance on the prior standard by saying that it was consistent with the common law. [00:07:04] Speaker 00: and just ignores the fact that this court said that for 30 years, the court, the board did not take into account reserved and indirect control. [00:07:14] Speaker 00: So even if it could say that the Browning-Ferris I standard was wrong, which it didn't say, it's justification for not applying it, it can't just revert back to the old standard and the justification that it gave, which is that it was consistent with the common law. [00:07:31] Speaker 00: all along. [00:07:33] Speaker 01: Well, we I don't know that we we held that the old standard was inconsistent with common law. [00:07:42] Speaker 01: We said that the common law permits consideration of indirect control. [00:07:48] Speaker 01: But I mean, my recollection and wrestling with this case before is that it was very difficult, very difficult case because there was no like one [00:08:00] Speaker 01: articulation of the common law that all courts agreed on with respect to indirect control and how indirect control factors in the specifics of it. [00:08:20] Speaker 01: What language are you pointing to in our opinion that you think mandates consideration of indirect control? [00:08:29] Speaker 00: Well, certainly this court says that under Supreme Court in circling circuit precedent, National Labor Relations Act test for joint employer status is determined by the common law agency. [00:08:43] Speaker 00: It identified that the change in the standard was that the board didn't consider indirect control and reserve control. [00:08:51] Speaker 00: And now it does. [00:08:52] Speaker 00: That was what was challenged. [00:08:54] Speaker 00: Everybody understood that that was what the change was. [00:08:57] Speaker 00: And then the court says. [00:08:59] Speaker 00: I mean, did we say that the old standard was wrong? [00:09:06] Speaker 00: So everybody, as I said, it was understood, at least at the time, it was understood that the change being made was that reserve control and direct control were not considered, and now they were considered. [00:09:20] Speaker 00: And this court says, we conclude that the board's right to control standard [00:09:24] Speaker 00: is an established aspect of the common law of agency. [00:09:28] Speaker 00: The board also correctly determined that the common law inquiry is not woodenly confined to addition of direct and immediate control. [00:09:35] Speaker 00: An employer's indirect control over employees can be a relevant consideration. [00:09:40] Speaker 04: He also said traditional common law principles of agencies do not require the control be exercised directly and immediately to be relevant to the joint employer inquiry. [00:09:51] Speaker 04: That's a quote, correct? [00:09:53] Speaker 00: Correct. [00:09:54] Speaker 00: So, and then practically speaking, it would be sort of futile to allow the board to apply its prior standard that was inconsistent with the common law because this court doesn't defer to the board's understanding of the common law. [00:10:14] Speaker 04: We also said an agency that closes its mind to evidence of indirect control is unsupported by law. [00:10:21] Speaker 04: Correct. [00:10:25] Speaker 04: And a correct articulation of the governing law tests. [00:10:29] Speaker 04: And that legal standard is a common law principle that a joint employer's control, whether direct or indirect, exercised or reserved. [00:10:37] Speaker 04: That's the correct articulation. [00:10:44] Speaker 00: Yeah. [00:10:44] Speaker 00: I think it repeatedly makes clear that these are considerations within the common law. [00:10:52] Speaker 04: We'll give you two minutes for rebuttal. [00:11:15] Speaker 05: May it please the court. [00:11:17] Speaker 05: May it please the court. [00:11:18] Speaker 05: My name is Milakshmi Rajapaksa. [00:11:20] Speaker 05: I'm counsel for the National Labor Relations Board. [00:11:23] Speaker 05: Contrary to the union's claims in this appeal, the board acted reasonably and consistent with this court's remand opinion in revisiting its decision to apply the Browning-Ferris 1 Joint Employer Standard retroactively and in finding on closer consideration that retroactive application would be manifestly unjust. [00:11:44] Speaker 05: The board began its analysis by asking consistent with in-circuit precedent [00:11:50] Speaker 05: whether Browning-Ferris One constituted a substitution of new law for old law that was reasonably clear and on which employers may have relied in organizing their business relationships. [00:12:02] Speaker 05: The board found that there was such a substitution under Browning-Ferris One, under, excuse me, under pre Browning-Ferris One law, it was an absolute requirement [00:12:14] Speaker 05: that an employer exercise direct and immediate control in order to be considered a joint employer under the Act. [00:12:23] Speaker 05: Whereas Browning Ferris made it possible for an employer to be held a joint employer based on [00:12:30] Speaker 05: reserved and indirect control standing alone. [00:12:34] Speaker 05: This was a dramatic shift in the law. [00:12:35] Speaker 04: It didn't do that. [00:12:37] Speaker 04: It didn't need to, because it also found direct control in that case. [00:12:39] Speaker 04: That's not what happened. [00:12:41] Speaker 04: And it seems to me the 2020 rule itself, which predated the board's decision here, made quite clear that passport cases had allowed consideration [00:12:55] Speaker 04: of indirect and reserve control. [00:12:58] Speaker 04: It's just, you had to have direct control too. [00:13:02] Speaker 04: You couldn't decide it just on that. [00:13:03] Speaker 04: And Browning Ferris 1, the first board decision didn't rely just on reserved and indirect. [00:13:10] Speaker 04: It was an adjudication. [00:13:11] Speaker 04: It wasn't a rulemaking. [00:13:12] Speaker 04: And it found direct control in that case. [00:13:16] Speaker 04: And then the rule made quite clear that as long as you're just considering [00:13:22] Speaker 04: indirect and reserve control. [00:13:24] Speaker 04: And you apply the second step, the meaningly affect matters relating to employment relationship from the analysis that can itself limit the role of indirect and reserved control. [00:13:39] Speaker 04: And so, you know, it's very odd to me that the rule that came out in 2020 provided a framework [00:13:51] Speaker 04: consistent with password decisions where things would have just been clarified and organized and explained. [00:14:01] Speaker 04: And had they done that same thing in 2021, they would have been able to apply their first Browning Ferris standard to this case. [00:14:12] Speaker 04: In the same manner as the rules seem to anticipate so the rules sort of going no, we had some of both in our history, we looked at it sometimes of course we've never said it'll reserved and indirect alone counts and that's not what happened to the Browning Ferris one decision by the board here either. [00:14:31] Speaker 04: The rule itself said, here's how this all fits together. [00:14:34] Speaker 04: Don't forget that second, the second prongs. [00:14:38] Speaker 04: In this case, we told the board to keep in mind, you've got to go back and look how these things bear on matters for collective bargaining, how it would work with that, which would have its own limiting force. [00:14:49] Speaker 04: Had the board done that, there would have been no retroactivity issue at all, correct? [00:14:59] Speaker 05: Well, I will say factually in this Browning-Ferris case, there is some evidence of direct and immediate control and that's true, Your Honor, but the Browning-Ferris test that was articulated was not limited to the facts of this case. [00:15:16] Speaker 05: It was a broad test that was meant to be applied. [00:15:18] Speaker 04: It was an adjudication. [00:15:20] Speaker 04: It was an adjudication. [00:15:21] Speaker 04: And they were quite clear in that case that we have all three. [00:15:25] Speaker 04: And we were crystal clear that this case doesn't present that question. [00:15:32] Speaker 05: But the board in framing its Browning-Ferris I test said, first of all, there's no longer any requirement of direct and immediate control. [00:15:42] Speaker 05: And any control can be limited in routine and still qualify. [00:15:46] Speaker 05: and reserved indirect control are probative. [00:15:50] Speaker 05: And so if you put those two statements together, the necessary implication- But we made clear, this is about a remand. [00:15:55] Speaker 04: And we made crystal clear what the case was about. [00:15:59] Speaker 04: And the board itself had said this case involves direct evidence. [00:16:02] Speaker 04: So we had said, first of all, we completely upheld the use of the consideration of reserved control. [00:16:12] Speaker 04: The remand, [00:16:14] Speaker 04: was very was narrow. [00:16:16] Speaker 04: And it is we uphold is fully consistent with the common law the board's determination that both both reserved authority control and indirect control can be relevant factors in the joint employer analysis, what we remanded for was application. [00:16:32] Speaker 04: in that case, because it's an adjudication, application in that case of the indirect control factor. [00:16:39] Speaker 04: That's what had we flagged as having some confusion or lack of clarity and some concerns about the lines that were drawn, but simply application of and upheld legal test [00:16:56] Speaker 04: in the facts of the Browning Ferris case. [00:17:00] Speaker 04: And as part of that, we said, this case does not present the question of what happens if there isn't evidence of direct control. [00:17:06] Speaker 04: And the board realized that. [00:17:08] Speaker 04: We just said there was direct control. [00:17:11] Speaker 04: So I don't understand how with us having sustained the articulation of the test as considering reserved and indirect control, that's consistent with common law. [00:17:23] Speaker 04: That was upheld. [00:17:25] Speaker 04: And we remanded only for application of one factor, the indirect control, not articulation of it, application on the facts of this case. [00:17:35] Speaker 04: We've ended up in this world where they go, you know what we're gonna do? [00:17:38] Speaker 04: We're gonna ignore the facts we found in Browning and Ferris one. [00:17:42] Speaker 04: We're just gonna ignore the existence of a law that was upheld, a legal articulation of a rule that was upheld by the DC circuit. [00:17:52] Speaker 04: And we're gonna apply the regional directors [00:17:55] Speaker 04: rule, which is the one articulation that was rarely employed by the board in the past. [00:18:03] Speaker 05: According to the 2020 rule. [00:18:05] Speaker 05: I think the board understood this court's remand to be asking essentially for a clarification of certain terms that were used in the test. [00:18:16] Speaker 04: If they can read it. [00:18:17] Speaker 04: We reverse the board's articulation and application of the indirect control element in this case, to the extent that it failed to distinguish between, you know, sort of common law factors and normal contractors. [00:18:34] Speaker 04: That's what the remand is. [00:18:35] Speaker 04: That's much narrower. [00:18:38] Speaker 04: but what it's hand described as. [00:18:41] Speaker 04: And so it just didn't present the question of whether they should jettison a rule that doesn't require any direct control at all. [00:18:49] Speaker 04: It was very clear that that wasn't what this case presented. [00:18:53] Speaker 04: And this is an adjudication, not a rulemaking. [00:18:56] Speaker 05: Right, there was, I mean, I think factually in this case, there is a change that affects the outcome [00:19:08] Speaker 05: of this case in the change in tests. [00:19:10] Speaker 05: So under the prior law, before Browning-Ferris 1, limited and routine direct control would not count. [00:19:19] Speaker 05: Under Browning-Ferris 1, it does count. [00:19:22] Speaker 05: Everything counts. [00:19:24] Speaker 05: And that's part of the dramatic- Well, could they have not gone back? [00:19:27] Speaker 04: Tell me, could they have gone back in this case? [00:19:30] Speaker 04: I'm not saying they had to, but couldn't they have gone back and said, [00:19:35] Speaker 04: We overshot on what we counted as indirect control. [00:19:39] Speaker 04: We're taking those off the table. [00:19:42] Speaker 04: Here are the things that we think we shouldn't have included as indirect control. [00:19:45] Speaker 04: Let us be clear what indirect control is. [00:19:49] Speaker 04: And it's informed by the fact that it has to bear on sort of workable collective bargaining, which is going to make it more stringent. [00:19:59] Speaker 04: And having done that, we look, we've got some direct control, we've got some reserve control, and we have something direct control. [00:20:07] Speaker 04: And it could have looked at those, having knocked out the things it wasn't supposed to consider. [00:20:11] Speaker 04: And it could have said, because there's that direct control and we consider those other factors, [00:20:17] Speaker 04: that does or does not. [00:20:20] Speaker 04: It could have decided the direct control was enough or not, considering, just considering the existence of reserved and indirect control. [00:20:27] Speaker 04: And it could have said they are not independent contractor on that basis. [00:20:33] Speaker 04: And that would have been fully consistent with, as the 2020 rule explained, the long arc of board decision making. [00:20:43] Speaker 05: The board also, Your Honor, I think- Is that right? [00:20:47] Speaker 05: I don't think the board viewed the situation that way at all. [00:20:53] Speaker 04: I'm asking you whether, under our remand, that was possible. [00:20:56] Speaker 04: Knock out indirect control things that we shouldn't have counted, because that's what the remand was focused on. [00:21:01] Speaker 04: It was just the application of indirect control and how it was articulated in this case. [00:21:06] Speaker 04: And said, all right, here are the legitimate indirect control things. [00:21:09] Speaker 04: Or they could have said, we're just not going to do indirect control at all. [00:21:13] Speaker 04: Here's what we have that's reserved and direct. [00:21:15] Speaker 04: And that is or is not enough. [00:21:17] Speaker 04: could have done that. [00:21:19] Speaker 04: The board the board could have done that but the board could have done that and if it had done that and come out either way that would not have been a whole new application of a rule of law at least as the 2020 rule teaches that would have not been a whole new application of law of board [00:21:39] Speaker 04: law. [00:21:40] Speaker 04: Now, someone might have had a dispute whether they got it right, sort of an arbitrary and capricious review of whether they got it right, but it wouldn't have been a whole new application of law that necessitated a retroactivity. [00:21:49] Speaker 04: Well, the board, in the board's view. [00:21:51] Speaker 04: Correct? [00:21:52] Speaker 04: I'm not asking you what operationally could have happened. [00:21:56] Speaker 05: I think it would have been different because reserved control would be getting [00:22:00] Speaker 05: much more weight than it had ever gotten before. [00:22:03] Speaker 04: What do you mean? [00:22:04] Speaker 04: It's been considered in the past. [00:22:06] Speaker 04: I'm not telling you they could have said we have to have direct control. [00:22:10] Speaker 04: If they said we don't have enough direct control, then you're not an independent, you're not a joint employer. [00:22:17] Speaker 04: They could have said that. [00:22:18] Speaker 04: There's not enough direct control here, couldn't they? [00:22:22] Speaker 05: Well, I think they could have said that, Your Honor, but it wouldn't have removed the novelty of the test because before, reserved control [00:22:30] Speaker 05: and limited in routine direct control would not result in a finding of joint employer status. [00:22:36] Speaker 04: It would not- I'm sorry, were they not considered as factors in passport cases? [00:22:39] Speaker 04: That's what the 2020 rules said. [00:22:41] Speaker 04: They were, they were, but I'm right. [00:22:43] Speaker 04: The point I- But they would have given up, if they had given it the exact same weight they gave reserved in direct control in old cases and even in 2000 in rendezvous and MBA Sturges, they had treated it just the same, which they could have. [00:23:00] Speaker 04: So all we said is that reserve control is a relevant factor. [00:23:07] Speaker 04: 2020 rule tells us, yeah, we did that in the past. [00:23:14] Speaker 04: They could have decided that. [00:23:15] Speaker 04: And there would have been no retroactivity issue. [00:23:19] Speaker 05: If the court believes that the board did not follow its instructions, [00:23:24] Speaker 05: The board does believe the appropriate course. [00:23:26] Speaker 04: I'm just saying they said that there's no way, no how we could decide this without triggering retroactivity. [00:23:33] Speaker 04: And I'm trying to give you some scenarios where they very well could have. [00:23:39] Speaker 04: And it seemed to be the retroactivity analysis depended on this view that there was some sharp turn in the Brown and Ferris one decision. [00:23:52] Speaker 04: that in fact seems inconsistent with how history is described by the board itself the year before in its rulemaking. [00:24:01] Speaker 05: I don't think so, Your Honor. [00:24:02] Speaker 05: I mean, again, as I've said, the quality of direct control that's considered as different under Browning Ferris one. [00:24:10] Speaker 05: OK, so that's one thing. [00:24:11] Speaker 05: And in addition. [00:24:13] Speaker 05: That's what the remand was for, was just to clarify that. [00:24:18] Speaker 05: Well, that's exactly what they could have done. [00:24:20] Speaker 05: The remand, as the board understood it, was to clarify indirect control. [00:24:26] Speaker 05: It wasn't to modify the entire test. [00:24:29] Speaker 05: It was to clarify indirect control and then to define certain terms, like what is an essential term and condition of employment? [00:24:37] Speaker 05: What does meaningful collective bargaining mean? [00:24:39] Speaker 05: And the board's view is simply that the clarification of the mechanics of this test and the terminology would not change the structure of things. [00:24:48] Speaker 05: The structure of things is that [00:24:50] Speaker 05: before, you could consider reserved and indirect control, but they couldn't be determinative, standing alone, whereas now they would be. [00:25:00] Speaker 04: Okay, so your whole case here depends on reading the passport decision, is saying that reserved, as this being a case, the Browning-Ferry case v1, where reserved and or indirect for them combined were alone determinative. [00:25:19] Speaker 04: I understand your position. [00:25:20] Speaker 05: Yes, that is the board's position. [00:25:22] Speaker 04: And I thank you to my colleagues. [00:25:25] Speaker 02: Can I just ask a quick, slightly different question? [00:25:29] Speaker 02: Can you just help me to understand whether the board distinguished or otherwise addressed its earlier fact finding about direct and immediate control in its remand decisions? [00:25:45] Speaker 05: The board did not, in this decision, it simply adopted the regional director's determinations. [00:25:53] Speaker 05: But I will say that the regional director's determinations, to the extent that there's any seeming inconsistency between his decision and what the board in Browning Fairs 1 found, I think those inconsistencies are the result of two different tests being applied and a different view of what the relevant facts are. [00:26:14] Speaker 05: So the regional director was looking for evidence of substantial direct and immediate control. [00:26:20] Speaker 05: And when he found that lacking, he highlighted those things. [00:26:25] Speaker 05: Whereas the board was looking at a range of different factors in Browning Ferris 1, including indirect control of all kinds, routine, non-routine. [00:26:37] Speaker 05: And so the board in Browning Ferris 1 swept in many more facts essentially than the regional director did. [00:26:44] Speaker 05: But I think that's all due to the difference in the legal standard. [00:26:49] Speaker 05: Colleagues, any other questions? [00:26:53] Speaker 01: My recollection from your brief is that the board's position on our standard of review of the retroactivity decision is de novo, right? [00:27:07] Speaker 05: Essentially, yes, except to the extent that the board is weighing statutory policy. [00:27:14] Speaker 05: the board would get some deference on that. [00:27:17] Speaker 01: All right, thank you. [00:27:19] Speaker 05: Thank you. [00:27:20] Speaker 04: Thank you very much. [00:27:21] Speaker 04: All right, Mr. Sharma, we'll give you two minutes. [00:27:26] Speaker 00: Thank you. [00:27:26] Speaker 00: I think I just have three quick points. [00:27:28] Speaker 00: Just to reiterate your point, Judge Millett, in the board's rulemaking at 85 FR 11191, [00:27:40] Speaker 00: Uh, they say specifically that, um, that the way they sort of clarify, uh, how they, the board has taken into account, uh, indirect and reserve control, um, but not given a determinant of weight is consistent with the common law. [00:27:59] Speaker 00: And they say it's consistent with 30 years of the 30 year precedent, uh, prior to Browning Ferris one. [00:28:04] Speaker 04: So that is consistent with our decision and with your decision. [00:28:09] Speaker 00: So it's consistent with all three, which means that their position that there could be no clarification that wouldn't unsettle expectations is totally undermined by that. [00:28:20] Speaker 00: The other point I wanted to make was my colleague, Mrs. Roger Poxy, mentions the direct and immediate control under the new test that they wouldn't be, it would allow for limited and routine. [00:28:36] Speaker 00: The board in its decision [00:28:38] Speaker 00: on remand doesn't mention that at all. [00:28:40] Speaker 00: All they point to is reserved and indirect control and how those would be part of the standard as its reason for not applying retroactivity. [00:28:50] Speaker 00: And then the last, her point about the inconsistency of the rulemaking being based on the different tests is the board certainly found facts that would seem to be evidence of direct control, such as the number of people who stand [00:29:07] Speaker 00: on a material stream, where they stand on the material stream and what order they pick material out of that stream, including whether or not they use their right hand or their left hand to do it would seem to be evidence of direct control. [00:29:19] Speaker 00: And with that, we would just ask that this court remand the case. [00:29:25] Speaker 04: Do my colleagues have any questions? [00:29:28] Speaker 04: Okay. [00:29:29] Speaker 04: The case is submitted with thanks to counsel.