afl-cio brief
DESCRIPTION
in Browning FerrisTRANSCRIPT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BROWNING-FERRIS INDUSTRIES
OF CALIFORNIA, INC., D/B/A BFI NEWBY
ISLAND RECYCLERY,
Employer,
and Case 32-RC-109684
FPR-II, LLC, D/B/A LEADPOINT
BUSINESS SERVICES,
Employer,
and
SANITARY TRUCK DRIVERS AND
HELPERS LOCAL 350,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
Petitioner.
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS
AS AMICUS CURIAE
Craig Becker
Lynn Rhinehart
Maneesh Sharma
815 Sixteenth Street, NW
Washington, DC 20006
(202) 637-5337
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................... ii
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS
AS AMICUS CURIAE..................................................................................1
STATEMENT OF FACTS ..........................................................................2
ARGUMENT ...............................................................................................6
1. The Board Should Abandon the Requirement of “Direct and
Immediate” Control and Construe the Term “Codetermine” to
Encompass Separate, Even Sequential Decisions by the Two
Putative Employers that Together Set Terms or Conditions
of Employment ..........................................................................6
2. The Board Should Consider a Putative Joint Employer’s
Control of All Terms and Conditions of Employment .............13
3. The Board Should Hold that the Fact of Control Matters,
Not the Reason for the Control ................................................17
4. The Board Should Hold that Authority to Control
Is Sufficient ..............................................................................22
CONCLUSION ..........................................................................................29
ii
TABLE OF AUTHORITIES
Cases: Page
Air Terminal Cab, Inc. v. United States, 478 F.2d 575 (8th Cir. 1973) .................28
Airborne Freight Co., 338 NLRB 597 (2002) ...................................................6, 13
Aldworth Co., 338 NLRB 137 (2002) ........................................................16, 17, 18
AM Property Holding Corp., 350 NLRB 998 (2007) ..........................14, 22, 23, 27
Bethlehem-Fairfield Shipyard, Inc., 53 NLRB 1428 (1943) .................................24
Boire v. Greyhound Corp., 376 U.S. 473 (1964) ...................................................29
Breaux and Daigle, Inc. v. United States, 900 F.2d 49 (5th Cir. 1990) .................28
Cabot Corp., 223 NLRB 1388 (1976) ...................................................................23
Capitol EMI Music, Inc., 311 NLRB 997 (1993) ................................................7, 8
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ...................15
Computer Assocs. Int’l, Inc., 332 NLRB 1166 (2000) ..........................................13
Container Transit, Inc., 281 NLRB 1039 (1986) ..................................................20
Dickerson-Chapman, Inc., 313 NLRB 907 (1994) ................................................20
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964) ...........................15
Flav-O-Rich, Inc., 309 NLRB 262 (1992) .............................................................14
Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ....................................................17
Frostco Super Save Stores, Inc., 138 NLRB 125 (1962) .......................................24
G. Wes Ltd., 309 NLRB 225 (1992) ......................................................................14
Gallenkamp Stores Co. v. NLRB, 402 F.2d 525 (9th Cir. 1968) ............................22
General Motors Corp., 60 NLRB 81 (1945) .........................................................24
Goodyear Tire & Rubber Co., 312 NLRB 674 (1993) ..............................18, 20, 23
iii
Greyhound Corp., 153 NLRB 1488 (1965) .............................................................6
Hanes Corp., 260 NLRB 557 (1982) .....................................................................20
Holyoke Visiting Nurses Ass’n v. NLRB, 11 F.3d 302 (1st Cir. 1993)...................27
Hoskins Ready-Mix Concrete, Inc., 161 NLRB 1492 (1966) ................................24
Hychem Constructors, Inc., 169 NLRB 274 (1968) ........................................18, 21
Jewell Smokeless Coal Corp., 170 NLRB 392 (1968).........................................8, 9
Jewel Tea Co., 162 NLRB 508 (1966) ..................................................................24
King Trucking Co., 259 NLRB 725 (1981) ...........................................................25
Laerco Transportation, 269 NLRB 324 (1984) ............................................. passim
Local 254, Service Employees International Union (Women & Infants Hospital)
324 NLRB 743 (1997) ...........................................................................9, 14
Long Island Day Care Servs., 303 NLRB 112 (1991) ...........................................20
Lucky Cab Co., 360 NLRB No. 43 (Feb. 20, 2014) ..............................................26
Management Training Corp., 317 NLRB 1355, 1357 (1995) .........................16, 17
Manpower, Inc., 164 NLRB 287 (1967) ..............................................................7, 8
M.B. Sturgis, Inc., 331 NLRB 1298 (2000) .............................................................2
McGuire v. United States, 349 F.2d 644 (9th Cir. 1965) .......................................28
Mitchell Bros. Truck Lines, 249 NLRB 476 (1980) ..................................20, 23, 25
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, (1992) ..................................15
North Miami Convalescent Home, 224 NLRB 1271 (1976) .................................26
Nu-Carriers v. NLRB, 189 F.2d 756 (3d Cir. 1951) ..............................................25
Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949) .......................................25
Pepsi-Cola Co., 327 NLRB 1062 (1999)...............................................................25
iv
Pitney Bowes, Inc., 312 NLRB 386 (1993) ...........................................................16
Quantum Resources Corp., 305 NLRB 759 (1991) ...............................................13
Rediehs Interstate, Inc., 255 NLRB 1073 (1980) ............................................19, 20
San Marcos Tel. Co., 81 NLRB 314 (1949) ..........................................................28
Serv. Emp. Union, Local 87 (Trinity Bldg. Maint. Co.),
312 NLRB 715 (1993) ...................................................................14, 18, 21
Sierra Madre-Lamanda Citrus Ass’n, 23 NLRB 143 (1940) ................................24
Solvay Process Co., 26 NLRB 650 (1940) ............................................................24
Southern Cal. Gas Co., 302 NLRB 456 (1991) ...................................14, 18, 22, 23
Spartan Dep’t Stores, 140 NLRB 608 (1963) .......................................................24
S.S. Kresge Co. v. NLRB, 416 F.2d 1225 (6th Cir. 1969) ......................................22
Taylor’s Oak Ridge Corp., 74 NLRB 930 (1947) .................................................24
Thriftown, Inc., 161 NLRB 603 (1966) .................................................................24
TLI, Inc., 271 NLRB 798 (1984) ................................................................... passim
UFCW Local 1996, 336 NLRB 421 (2001) .............................................................7
Watsonville Newspapers, LLC, 327 NLRB 957 (1999) .........................................20
West Texas Utilities Co., 108 NLRB 407 (1954)...................................................24
Statutes and Regulations:
29 U.S.C. § 152(2) .................................................................................................26
29 U.S.C. § 152(11) ..............................................................................................26
Cal. Code Regs. tit. 8, § 336.10 .............................................................................21
Cal. Lab. Code § 50.7(a) ........................................................................................21
Cal. Lab. Code § 6400(a) ......................................................................................21
v
Cal. Lab. Code § 6400(b)(2) .................................................................................21
Cal. Lab. Code § 6400(b)(3) ..................................................................................21
Cal. Lab. Code § 6400(b)(4) .................................................................................21
Miscellaneous:
Merriam-Webster Online Dictionary .......................................................................7
OSHA Instruction: Multiemployer Citation Policy (Dec. 10, 1999) ....................21
Restatement (Second) of Agency, § 220(1) ...........................................................25
1
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS
AS AMICUS CURIAE
The American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) files this brief as amicus curiae in response to the Board’s Notice and
Invitation to File Briefs.
The AFL-CIO urges the Board to modify its recent, narrow applications of the
joint employer standard articulated in TLI, Inc., 271 NLRB 798 (1984), and Laerco
Transportation, 269 NLRB 324 (1984), in order to permit consideration of all evidence
relevant to the question of whether an particular entity is a joint employer of particular
employees. Briefs submitted by other amici will detail the changes in the employment
relationship over the past few decades, and, in particular, the increasing division of
employer authority and responsibility.1 Despite these dramatic changes in employment
relationships, the Board has not systematically considered how its existing standard
applies to these new facts or whether the standard needs to be adjusted to better apply the
Act’s terms to the changing workplace. In fact, even though it sought briefs on this very
issue 18 years ago in Jeffboat Division, American Commercial & Marine Services Co., 9-
UC-406, the Board’s eventual decision did not reach the question of the joint employer
1 While we do not suggest that the Board’s standard should consider a putative joint
employer’s motive regarding how it structures its employment relationships, we do
suggest that the Board should not be blind to the well-documented fact that, in many
instances, users contract with suppliers to supply employees precisely in order to avoid
legal obligations toward those employees and often with knowledge or, at least, a good
reason to expect that the supplier will not honor those obligations because its margins are
too thin, it is undercapitalized, or its employees are particular vulnerable to abuse. In
this case, for example, it surely is no accident that the user is contracting for the services
of the lowest paid, least skilled, and most vulnerable workers in its operation.
2
standard. See M.B. Sturgis, Inc., 331 NLRB 1298 (2000). Indeed, without explanation,
the Board’s doctrine seems to have drifted, in several respects, in a direction that is less
rather than more responsive to the changes in employment relationships.
The Board’s current articulations of the joint employer standard and its recent
applications of the standard discount significant authority user employers2 both possess
and exercise over terms and conditions of employment, and results in decisions like the
Regional Director’s Decision and Direction of Election in the instant case. The user
employer in this case possesses and exercises significant control over the proposed unit
employees’ terms and conditions of employment, most importantly through its control of
the facility and its operations. A proper articulation and application of the joint employer
standard should result in the conclusion that the user employer is a joint employer of the
employees in this case.
Statement of Facts
Browning-Ferris Industries (BFI) operates a recycling facility in Milpitas, CA.
DDE 1.3 BFI directly employs approximately 60 workers at the facility, including loader
operators, equipment operators, forklift operators, sort line equipment operators, spotters,
and one sorter. Id. at 3. These employees are primarily responsible for moving unsorted
materials into the facility for sorting, and sorted materials out of the facility to other
locations. Id.; Tr. 15:7-14. Nearly all of these 60 workers work on the outside of the
2 We use the terms “user employer” and “supplier employer” as those terms are defined
in M.B. Sturgis, 331 NLRB at 1299.
3 DDE _ refers to the Regional Director’s Decision and Direction of Election and page
number. Tr. _ refers to Transcript and page number. U Ex. _ refers to Union Exhibit and
number. SA _ refers to the Service Agreement between BFI and Leadpoint (Jt. Ex. 1)
and page number.
3
facility. Id. They are represented by Petitioner, Sanitary Truck Drivers and Helpers
Local 350. DDE at 3.
The essential function of the recycling facility is the sorting of materials into
separate commodities for sale. Id.; Tr. 13:2-9 (“Recyclery Operations is a recycling sort
process that happens inside [the Milpitas facility].”). The facility contains four conveyor
belts that carry distinct categories of materials into the facility. DDE 3. These are known
as material streams; the four streams are residential mixed recyclables, commercial mixed
recyclables, dry waste process, and wet waste process. Id. at 3-4. The materials are
loaded onto the streams, and then sorted by hand by sorters along the stream. Id. at 4.
BFI maintains the entire physical plant, including the conveyors, screens, and
motors that are used for the sorting operation. Tr. 15:20-23. BFI has placed platforms
along the lines, upon which the sorters perform their work collecting and sorting
materials that travel along conveyor belts. Tr. 15:23-16:3. Sorters must be present at
these work stations when the line is running in order for the plant to function. Tr. 187:1-
3.
BFI only acknowledges that it employs one of the workers who perform the
sorting operation. BFI contracts with Leadpoint to supply the rest of the sorters and
alleges that Leadpoint is their sole employer. DDE 4. Leadpoint employs approximately
240 full-time, part-time, and on-call employees who work within the plant. Id. The vast
majority of these employees are sorters; the remainder are screen cleaners and
housekeepers. Id. The sorters do the physical work of removing waste from material
streams that are supposed to contain recyclable items and removing recyclables from
waste streams. Id.
4
Leadpoint assigns its own supervisors to the facility, including an on-site manager
who reports directly to Leadpoint's corporate office. DDE 4. Leadpoint sets the
schedules of individual sorters, and determines which sorters will work overtime. Id. at
11. Both companies maintain separate Human Resources departments on-site. Leadpoint
sets the wages and benefits of the sorters, issues the paychecks, and is responsible for tax
withholding. Id. at 5-6. However, the Service Agreement between BFI and Leadpoint
provides that Leadpoint must obtain BFI's consent if it seeks to pay the sorters wages
greater than BFI employees who perform the same work. Id. at 5.
BFI also possesses and exercises significant authority over work hours, work
days, and headcount. It sets the facility’s hours of operation, including the start and end
times of each of its three shifts. DDE at 11. The shifts run from 4:00AM to 1:00PM,
2:00PM to 11:30PM, and 10:30PM to 7:00AM. Id. BFI determines which days the
facility runs, and, thus, which days Leadpoint employees will work at the facility. Tr.
177:16-179:10 (Leadpoint employees assigned to BFI receive the same holidays as BFI
employees, and Leadpoint is bound to supply labor every day the facility is running).
BFI decides which lines will run each day and the number of sorters Leadpoint supplies.
Tr. 36:1-12, 149:8-10. On at least one occasion, BFI instructed Leadpoint to permanently
reduce its headcount on one line. U. Ex. 1. BFI determines whether lines will run past
the scheduled end of shift, requiring the sorters to work overtime. DDE 11. It also
decides when to stop the lines so the sorters can take a break. Tr. 87:3-7; 89:4-7.
BFI closely monitors the work sorters perform. Its shift supervisors maintain
productivity standards that require sorters on each material stream to sort a certain
number of tons of material per hour, and BFI supervisors adjust the speed of the line to
5
meet those standards. Tr. 85:22-86: 2; DDE 9. BFI managers meet with Leadpoint’s
supervisors every morning to convey the work plan for the day. Tr. 79:10-19. BFI
managers are in constant contact throughout the day with Leadpoint’s supervisors via
walkie-talkie. Tr. 104:8-19. BFI instructs Leadpoint to move sorters from one line to
another based on its operational needs. Tr. 210:23-211:7. BFI managers raise
performance issues they spot along the line with Leadpoint supervisors for correction.
Tr. 82:16-22. On at least one occasion, a BFI manager held a meeting with Leadpoint
supplied sorters to discuss quality issues. Tr. 84:12-15. After observing two Leadpoint
employees drinking whiskey within the facility, BFI requested that the workers be
removed from the worksite, and they were. U. Ex. 2.
BFI supervisors have provided safety and equipment training to Leadpoint
employees, particularly when the facility first opened. DDE 10-11; Tr. 83:1-85:5. BFI
Operations Manager Paul Keck also testified that he held meetings and training sessions
which Leadpoint employees attended and sometimes held “educational meetings” to
discuss quality control and safety issues with Leadpoint sorters. Tr. 135:4-137:14; 145:6-
147:12. Leadpoint acknowledges that BFI is authorized to provide safety training to
Leadpoint employees. Tr. 179:18-180:25. In fact, Leadpoint employees are required to
attend meetings and trainings that BFI conducts. Tr. 245:22-248:17.
The Service Agreement requires workers referred by Leadpoint to pass a drug
test. SA 2. It further requires workers to comply with BFI’s safety policy and maintain a
drug- and alcohol-free workplace. Id. at 3-4. In response to questions about BFI’s
request for workers who were drinking on the job to be dismissed, BFI’s division
manager stated that the request reinforced BFI’s worksite safety and alcohol standards.
6
Tr. 58:15-18. The Service Agreement also limits the length of time that Leadpoint sorters
can work at the facility. SA 2.
Argument
As articulated in TLI, Inc., 271 NLRB 798, 798 (1984), the Board will find joint
employment “where two separate entities share or codetermine those matters governing
the essential terms and conditions of employment.” In particular, an employer must
“meaningfully affect[] matters relating to the employment relationship such as hiring,
firing, discipline, supervision, and direction.” Id. (citing Laerco Transportation, 269
NLRB 324, 325 (1984)). This articulation of the joint employer test has existed since the
mid-1960s. See Greyhound Corp., 153 NLRB 1488, 1495 (1965). By centering the
analysis on the control a putative employer possesses over employees’ terms and
conditions, those articulations of the joint employer standard are appropriate under the
Act and consistent with common law.4 What is inconsistent with the terms of the Act, its
underlying policies, and the common law, is the Board’s unexplained and unjustified
narrowing of the user authority and control the Board considers relevant to joint
employer status.
1. The Board Should Abandon the Requirement of “Direct and Immediate” Control and
Construe the Term “Codetermine” to Encompass Separate, Even Sequential Decisions by
the Two Putative Employers that Together Set Terms or Conditions of Employment
The Board has, without explanation or justification, applied its articulated
standard in an improperly narrow manner in several respects. First, in 2002, the Board
stated, “The essential element in this analysis is whether a putative joint employer’s
control over employment matters is direct and immediate.” Airborne Freight Co., 338
4 We discuss infra the use of the qualifying term “essential” in the standard articulated in
TLI.
7
NLRB 597, 597 n.1 (2002). This requirement of “direct and immediate” control over
terms and conditions constricts the analysis such that it takes no account of significant
controls user employers possess and exercise over terms and conditions. Moreover, the
Board provided no rationale or explanation for characterizing “direct and immediate”
control as “[t]he essential element” in the analysis. In fact, in Airborne, the Board cited
only TLI, 271 NLRB at 798-99, as authority, but the earlier decision in no way suggests
that direct and immediate control is essential.
a. Share and Codetermine Mean Different Things, and Both are Relevant
The Board has correctly stated that separate entities constitute joint employers
where they share or codetermine essential terms and conditions. While the Board has
never defined the terms “share” or “codetermine,” the words have clear and distinct
meanings. “Share” refers to situations in which employers each have direct control over
different terms and conditions of employment. See Merriam-Webster Online Dictionary
(defining “share” as “to divide (something) into parts and each take or use a part”). This
is best illustrated by a common fact-pattern in Board decisions – a supplier employer that
controls wages, benefits, payroll administration, hiring, and firing, and a user employer
that supervises and directs the employees’ day-to-day work. See, e.g., Capitol EMI
Music, Inc., 311 NLRB 997 (1993); Manpower, Inc., 164 NLRB 287 (1967). This type
of divvying up of terms and conditions can easily be seen as “sharing,” but does not
appear to constitute “codetermining.” “Codetermine,” then, must mean something
different. Cf. UFCW Local 1996, 336 NLRB 421, 426 (2001) (provisions of Act should
be construed so as not to render any superfluous).
8
The Board should define codetermination to mean the process through which two
separate entities each make decisions that together establish, i.e., determine, terms and
conditions of employment. This could mean that the two employers together agree to set
a term of employment, as when a user and supplier establish wage rates for supplier
employees in their agreement. But it should also cover the situation where each
employer makes a separate determination that, taken together, set a term of employment.5
If, as here, the user employer determines the shift hours, and the supplier employer
determines shift assignments, the two employers have codetermined each employees’
work hours.
Although not explicitly, the Board embraced this understanding of
codetermination in the past. For example, in Jewell Smokeless Coal Corp., 170 NLRB
392, 393 (1968), the Board held that a mine owner was a joint employer with operators
because, among other things, it provided the engineering for the mines and required the
operators to mine coal in the manner it was engineered, and it inspected the mines to
ensure operator employees were meeting its standards.6
5 This understanding of the words “share or codetermine” is consistent with another
Board formulation of the test, requiring that the joint employers “take part in
determining” the terms and conditions of employment of the employees at issue. Capitol
EMI Music, Inc., 311 NLRB at 999 (quoting Manpower, Inc., 164 NLRB at 288). An
employer can “take part” in determining terms either by wholly determining some but not
all the terms or by partly determining some or all of the terms.
6 Indeed, the description of the user’s control of the operation in Jewell applies equally
here, substituting recyclables for coal: “Jewell provides the engineering of the mines,
and, in order to insure the greatest practicable recovery of merchantable and mineable
coal, the operators are obliged to mine the coal in the manner in which it is engineered by
Jewell. Jewell regularly inspects the mines to insure that the operations meet the Jewell
standards. It is obvious that in this way, Jewell exercises considerable control over the
manner and means by which the operators extract the coal. The ownership of the coal, as
well as the mines, remains at all times vested in Jewell. The operators acquire no right to
9
The Board’s unexplained requirement of “direct and immediate” control of terms
and conditions of employment effectively eliminates codetermine from the standard
entirely and thereby unduly narrows the inquiry. The Board’s current, implicit
understanding of “codetermine,” arising from the requirement of “direct and immediate”
control, allows a putative employer who possesses and exercises considerable control
over terms and conditions of employment to escape a collective bargaining obligation by
simply inserting a supplier employer to take the last step needed to determine terms and
conditions of employment. The facts of the instant case show that BFI codetermines a
considerable number of the workers’ terms and conditions. This form of control should
be taken into account under a proper application of the TLI/Laerco standard. Therefore,
the Board should abandon the suggestions that the control must be “direct and
immediate” and instead require only what Laerco required, i.e., that the user
“meaningfully affect” overall terms and conditions of employment. 269 NLRB at 325.7
The qualifying language, “meaningfully affect,” supplies the necessary and
appropriate limiting principle. Thus, for example, a homeowner who retains a roofer to
sell the coal on the open market, but must deliver the coal to Jewell's tipple at a rate
which Jewell sets, without regard to the operator's mining or hauling costs. Finally, the
entire arrangement between Jewell and an operator can be terminated at any time, without
notice or cause.” 170 NLRB at 393.
7 In other cases the Board has dismissed this form of codetermination on the grounds that
it was motivated by the operational concerns of the user. For example, in Local 254,
Service Employees International Union (Women & Infants Hospital), 324 NLRB 743,
749 (1997), the judge (whose conclusion was affirmed by the Board) reasoned that
“contractual provisions affecting when work must be performed are not indicia of joint
employer status” because “[i]t is not surprising that [the user/college] would require that
cleaning be done at times most convenient for the college, or that a cleaner be available at
all times to handle emergencies.” Yet, all employers set hours in order to perform
necessary tasks as conveniently as possible, and therefore the fact that a user may have
that motive cannot render its exercise of control irrelevant.
10
replace her roof would not be the joint employer of the roofer’s employees because she
insisted that the roofer not work on the roof after she arrived home each day. While such
a stipulation arguably codetermines the employees’ hours at this one work site for a
limited period of time and thus is relevant to the determination, standing alone, it does
not meaningfully affect terms and conditions of employment.
b. BFI Codetermines Terms and Conditions of the Sorters’ Employment, Primarily
Through Its Operational Control of the Business
BFI codetermines, and thus meaningfully affects, a number of essential terms and
conditions of employment. By setting several criteria for personnel assigned to BFI, BFI
codetermines assignment to its workplace. While the Service Agreement states that
Leadpoint will recruit, interview, test, and hire personnel assigned to BFI, BFI retains the
right to have such personnel “meet or exceed Client’s own standard selection procedures
and tests.” SA 2. BFI thus sets a baseline of criteria that Leadpoint must adhere to when
assigning workers to BFI. Additionally, Leadpoint cannot assign an employee who has
been discharged by BFI and is ineligible for rehire. Id. Workers placed at BFI must pass
at least a “five panel urinalysis drug screen.” Id. Workers must sign a written
acknowledgement prior to referral that they will perform their duties for BFI drug and
alcohol free. Id. As workers cannot be assigned to BFI without meeting these criteria,
BFI codetermines assignment to its workplace.
BFI further codetermines terms and conditions of employment through its
operational control of the business. BFI owns the property upon which the work is
performed. It owns the building and machinery used in the sorting process, including the
conveyors, screens, and motors. Tr. 15:20-23. BFI sets the platforms along the
conveyors upon which sorters are stationed to perform their duties. Tr. 15:23-16:3;
11
187:1-5. As Leadpoint merely decides which particular workers will work on which
station along the conveyors, BFI codetermines work assignments and conditions.
BFI therefore codetermines the hours employees work on any given day and
workload. BFI determines which lines will run each day, and the number of people
needed for each particular line. Tr. 36:1-12. BFI controls the hours of operation and sets
the hours for the three shifts. DDE 11. BFI decides how long the lines will run and
whether overtime is required. Tr. 87:8-23; 107:19-108:3. BFI controls the speed of the
line, which governs the speed at which sorting is performed. Tr. 40:14-21.8 BFI ensures
the sorters are meeting productivity standards. Tr. 42:11-16. Leadpoint decides which
employees will work at BFI any given day, which shift they will work, and who will
work overtime when required, and ensures the employees properly respond to changes in
line speed. DDE 11, 17. BFI, therefore, codetermines the hours an employee works any
given day and their workload.
BFI codetermines employees’ safety standards. The Service Agreement requires
workers to review BFI’s Safety Policy. SA 3. Leadpoint is further required to provide
any safety training BFI has developed to affected workers, ensure that workers wear any
necessary safety equipment, ensure that workers attend any safety meetings and sign an
attendance sheet, and require that the workers immediately report any accidents to
Leadpoint. Id. at 3-4. BFI, therefore, imposes its own safety standards on the workers,
along with any safety procedures required by Leadpoint. Additionally, because BFI
8 BFI’s control of the speed of the line surely satisfied even the requirement of “direct
and immediate” control as it affects sorters’ work load without any intermediate action by
Leadpoint, notwithstanding the RD’s suggestion that Leadpoint determines how sorters
react to changes in line speed. DDE 9 & 17.
12
controls the layout of the facility, place and materials (some of which may be toxic)
before the sorters, controls the speed at which the line runs, and is responsible for
maintenance of the property and equipment, it codetermines the safety of the conditions
under which sorters labor.
BFI thus codetermines terms and conditions of employment. The Regional
Director’s decision discounts all of these controls and emphasizes instead the decisions
directly made by Leadpoint following and constrained by BFI’s determinations. Such a
narrow concept of joint employment is not required by the statutory terms, is not
supported by the common law, and would seriously undermine collective bargaining in
this context. If BFI is not a joint employer, workers will not be able to effectively
bargain over significant terms and conditions, including their hours, workload, working
conditions, and safety.
A broader understanding of “codetermine” allows the analysis to take into
account the context in which the work is performed. The workers supplied by Leadpoint
are the sorters within an integrated production process that separates recyclable materials
from trash. BFI did not make a decision to get out of the recycling business when it
contracted with Leadpoint; it merely contracted for labor to perform the sorting work
within its integrated process. It still owns and operates the plant, loads the materials to be
sorted onto the line, runs the line according to its productivity standards, ensures works is
being performed to its quality standards, and removes the sorted materials from the
facility. BFI owns the property, owns the conveyors and other equipment used for
sorting, and directly employs the workers who move the material in and out of the
facility. The workers supplied by Leadpoint simply perform the physical task of sorting
13
the material on the line. In this type of scenario and under all the circumstances of this
case, the user employer codetermines terms and conditions of employment.
2. The Board Should Consider a Putative Joint Employer’s Control of All Terms and
Conditions of Employment
In applying its joint employer test, the Board should consider a putative joint
employer’s control of all terms and conditions of employment. Yet some recent Board
decisions focus too narrowly on hiring, firing, discipline, supervision, and direction.
Member Liebman, in concurrence, criticized “the focus of the Board’s inquiry” as unduly
narrow, limited to the “exercise [of] control through direct hiring, firing, discipline,
supervision, and direction.” Airborne Freight Co., 338 NLRB at 598. Other decisions
appear to limit relevant control to that over “essential” terms and conditions of
employment without ever defining what those are or explaining the basis for the
limitation. The Board should abandon these unduly restrictive approaches and instead
consider a putative joint employer’s control over all terms and conditions of employment.
In particular, the Board has often disproportionately emphasized the significance
of direct supervision and control of the manner and means of performance of the work
when finding that two entities do not constitute joint employers. In many cases, the
Board’s emphasis on direct supervision ends up being dispositive of the joint employer
inquiry. See, e.g., Computer Assocs. Int’l, Inc., 332 NLRB 1166, 1166 n.2 (2000)
(emphasizing that the Board “place[s] particular reliance upon the . . . ongoing, close and
substantial supervision of [the supplier’s] employees by [the user employer’s]
managers”), rev’d on other grounds, 282 F.3d 849 (D.C. Cir. 2002); Quantum Resources
Corp., 305 NLRB 759, 760 (1991) (finding that a joint employer relationship existed
primarily because the user employer maintained “considerable direct involvement in the
14
supervision of unit employees”). But, direct supervision is not the only relevant form of
control.
In fact, the Board has, in some cases, narrowed its focus to such an extent that it
has even discounted evidence of direct supervision if it did not involve control of the
manner and means of performance. Thus, in AM Property Holding Corp., 350 NLRB
998, 1001 (2007), the Board stated that it “has held that evidence of supervision which is
‘limited and routine’ in nature does not support a joint employer finding” and that it has
“generally found supervision to be limited and routine where a supervisor’s instructions
consist primarily of telling employees what work to perform, or where and when to
perform the work, but not how to perform the work.” See also Local 254, Serv. Emp.
Int’l Union, 324 NLRB at 749 (finding that a user employer was not a joint employer
despite the absence of any supplier supervisors on the worksite because “the direct
supervision of [the supplier’s] employees by [the user’s] officials was limited . . . . ”);
Serv. Emp. Union, Local 87 (Trinity Bldg. Maint. Co.), 312 NLRB 715, 753 n.113 (1993)
(user’s right to ask supplier employee to perform tasks “seems to be ‘in the nature of
routine directions of what tasks [are] required . . .’ and not evidence of direct
supervision”) (quoting Southern Cal. Gas Co., 302 NLRB 456, 461 (1991)); G. Wes
Ltd., 309 NLRB 225, 226 (1992) (noting the absence of “evidence showing that the
[user’s] supervisors instructed [the supplier’s] employees specifically how to do the work
or the manner in which they were to perform the assigned tasks” and that any supervision
by the user’s supervisors was “limited and routine in nature”); Flav-O-Rich, Inc., 309
NLRB 262, 265 (1992) (user not joint employer because supplier employee “was capable
of performing the painting and general cleaning work he was assigned to perform and
15
[the user’s manager] merely informed the employee where he was to work on a given
day”).
This overly narrow focus is a product of an improper conflation of the standard
for determining whether an individual is an employee or an independent contractor with
the standard for determining whether a conceded employee is employed by more than
one employer. The Supreme Court has instructed that resolution of the former question
must begin with analysis of “the hiring party’s right to control the manner and means by
which the product is accomplished.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
323 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751
(1989)). But where, as here, it is conceded that the individuals at issue are employees,
the focus should widen to what entities have authority to establish terms and conditions
of employment, including, but not limited to, the manner and means of performance.
The standard properly articulated in TLI and Laerco does not require a narrow
focus on particular terms and conditions of employment. Laerco merely dictates that
joint employers must “meaningfully affect matters relating to the employment
relationship such as hiring, firing, discipline, supervision, and direction.” 269 NLRB at
325 (emphasis added). The Board should look to all the terms and conditions of
employment a putative employer controls. This should include all mandatory subjects of
bargaining, including working conditions and safety standards. As Justice Stewart wrote,
In common parlance, the conditions of a person’s employment are most obviously
the various physical dimensions of his working environment. What one’s hours
are to be, what amount of work is expected, what periods of relief are available,
what safety practices are observed, would all seem conditions of one’s
employment.
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 222 (1964) (concurring).
16
In addition to the Board’s overemphasis of control over the manner and means of
performance, the Board has suggested that control is not relevant unless it is over
“essential” terms and conditions of employment. See, e.g., TLI, 271 NLRB at 798.
Despite using this term of limitation, the Board has never defined “essential” terms and
conditions, nor has it explained why only control of those terms and conditions should be
cognizable in the joint employer analysis. In fact, in one of the few explanations of the
standard, the Board came close to defining it away. After reiterating the standard in
Aldworth Co., 338 NLRB 137, 139 (2002), the Board explained, “The relevant facts
involved in this determination extend to nearly every aspect of employees’ terms and
conditions of employment and must be given weight commensurate with their
significance to employees’ work life.” Id. (emphasis added).
Member Raudabaugh criticized his colleagues’ narrow focus in Pitney Bowes,
Inc., 312 NLRB 386, 386 n.1 (1993), explaining that he did “not agree that a ‘joint
employer’ analysis should focus on ‘essential’ terms and conditions of employment . . . .
That analysis gives no weight at all to other terms and conditions of employment.”
Member Raudabaugh further explained that he “would consider all terms and conditions
of employment, albeit . . . attach[ing] greater importance to the ‘essential’ ones.”
Additionally, the suggestion that only control over “essential” terms is relevant is
sharply discordant with the Board’s holding in Management Training Corp., 317 NLRB
1355, 1357 (1995), concerning when the Board will assert jurisdiction over a conceded
employer, but one with limited ability to affect some terms and conditions of its
employees’ employment. Rejecting the proposition that employees should not have a
right to petition for representation for the purpose of collective bargaining with such an
17
employer, the Board stated categorically, “Nor should the Board be deciding as a
jurisdictional question which terms and conditions of employment are or are not essential
to the bargaining process.” Id. Rather, the Board concluded, “The Employer in question
must, by hypothesis, control some matters relating to the employment relationship, or
else it would not be an employer under the Act.” Id. at 1358. Control of “some matters”
is also sufficient here.
Rejection of these unfounded, narrow approaches will not lead to a slide down the
slippery slope to a holding that a vending machine company is a joint employer of factory
employees because it sets the price of sodas in the break room, cf. Ford Motor Co. v.
NLRB, 441 U.S. 488 (1979), because, standing alone, setting soda prices would not
“meaningfully affect” terms and conditions of employment. The presence of the vending
machine company at the bargaining table would add nearly nothing and would therefore
not be required to ensure meaningful collective bargaining. Rather, as with our proposed
definition of the term “codetermine,” such an approach would merely allow the Board to
consider all relevant facts.
3. The Board Should Hold that the Fact of Control Matters, Not the Reason for the
Control
The Board’s application of its own express standard inexplicably and unjustifiably
turns on the reason for control, instead of simply the fact of control. In particular, the
Board disregards control retained or asserted by a putative employer in order to comply
with various forms of government regulation and control retained or asserted as a
property owner. See, e.g., Aldworth Co., 338 NLRB at 139 (“[A]ctions taken pursuant to
government statutes and regulations are not indicative of joint employer status, and
18
therefore we do not rely on those actions in reaching our determination.”);9 Goodyear
Tire & Rubber Co., 312 NLRB 674, 677 (1993) (affirming an ALJ’s holding that “control
evidence either mandated by contract or mandated by Government regulation” is not
evidence of a joint employer relationship); Hychem Constructors, Inc., 169 NLRB 274,
276 (1968) (dismissing evidence that user which owned premises imposed rules on
supplier employees on the grounds that “[t]he promulgation of such rules, which seek to
insure safety and security, is a natural concomitant of the right of any property owner or
occupant to protect his premises”); Service Employees Union, Local 87, 312 NLRB at
753 n.113 (user/owner’s right to replace supplier employee “merely is that of an owner or
occupant protecting his premises and not that of a joint employer”); Southern Cal. Gas
Co., 302 NLRB at 461 (“An employer receiving contracted labor services will of
necessity exercise sufficient control over the operations of the contractor at its facility so
that it will be in a position to take action to prevent disruption of its own operations . . . .
It follows that the existence of such control” does not indicate joint employer status).
It makes little sense for the Board to discount the fact of control based on its
motive. The determination of employer status is not governed by principles of intent or
voluntariness. Rather, it is based on the presence or absence of the requisite objective
factors. For that reason, the Board has never explained why control exercised based on
government mandate should be ignored beyond the tautological statement in Aldworth
that “such actions are not reliable indicators of joint employer status.” 338 NLRB at 140.
Under this holding, no matter how extensive the user’s regulation of terms and conditions
9 In Aldworth, the Board not only discounted control exercised based on a government
mandate but also benefits extended to employees by the putative joint employer in order
to obtain tax advantages. 338 NLRB at 140.
19
and how central those terms and conditions are to employees and how much discretion
the user has over how to comply with the legal mandate, the user’s control over terms and
conditions is given no weight. But the reason why a putative joint employer retains or
exercises a right of control does not in any way diminish the fact or the significance of
that control or its potential effect on working conditions. The only situation in which
looking to the reason for control may be appropriate is where a law or regulation leaves a
putative joint employer with no discretion whatsoever. Other than that situation, the
reason for the control should not matter. A party that is legally obligated to control
working conditions to comply with government regulations can engage in meaningful
bargaining regardless of what spurred that party to exercise the control.10
Prior to the mid-1980’s, the Board recognized this basic point, holding that “[t]he
fact that the employer is required by Government regulations to control the means and
manner in which the [employees] perform the Employer’s [work] does not diminish the
validity of our findings” that such controls show an employment relationship. Rediehs
Interstate, Inc., 255 NLRB 1073, 1077 (1980).11 “The actual relationship between the
employer and [the employees], rather than the reasons for the relationship, is the critical
10 Indeed, the fact that Congress, a state legislature or another federal or state agency
imposed an obligation on an entity to control particular working conditions of a set of
workers strongly suggests that responsible government officials believed that the entity
had both the power to establish those conditions and that the entity stood in a relationship
with the workers such that it was appropriate for it to do so.
11 We note that this case and several others cited in this and the following section of our
brief actually involved the question of whether the workers at issue were employees or
independent contractors rather than whether they were employed by more than one
employer. But the Board’s joint employer and independent contractor jurisprudence have
run parallel to each other on these issues, sometimes improperly, as we point out in
Section 2 above.
20
consideration.” Id. See also Mitchell Bros. Truck Lines, 249 NLRB 476 (1980). Cf.
Goodyear, 312 NLRB at 677 (acknowledging that the Board has been “inconsistent in the
manner in which it has handled” “‘control’ evidence . . . mandated by . . . government
regulation”). Thus, the Board gave weight to authority imposed by law in its joint
employer determinations.12
Furthermore, discounting control asserted to comply with government regulation
is inconsistent with the Board’s jurisprudence under Section 8(a)(5) regarding a conceded
employer’s duty to bargain when it has a legal duty to exercise control over certain
working conditions. As explained in Watsonville Newspapers, LLC, 327 NLRB 957,
958-59 (1999), the Board will only excuse unilateral changes in terms and conditions in
response to government regulation where the regulation leaves the employer no
discretion over how to comply. The Board will, however, find an 8(a)(5) violation where
“respondents could have bargained regarding the discretionary action taken to comply
with the law.” Id. at 959. See also Dickerson-Chapman, Inc., 313 NLRB 907, 942
(1994) (failure to bargain over which employees employer must designate as “competent
persons” under OSHA regulation violated 8(a)(5)); Long Island Day Care Servs., 303
NLRB 112, 116 & 117 (1991) (duty to bargain about distribution of federal grant when
“there were decisions within the [employer’s] discretion on which bargaining could
focus,” but no duty when there was “nothing of substance to bargain about”); Hanes
Corp., 260 NLRB 557, 562-63 (1982) (failure to bargain over which of three OSHA-
compliant respirators employer required employees to adopt violated 8(a)(5)). In other
12 When the Board overruled these decisions in Container Transit, Inc., 281 NLRB 1039,
1039 n.4 (1986), it provided no rationale.
21
words, if the user was the sole employer of the employees, it would clearly have a duty to
bargain with a duly chosen representative about terms and conditions it has a legal duty
to control. If discretionary responses to government regulations are mandatory subjects
of bargaining, they should certainly be considered indicia of control in a joint employer
determination.
In this case, BFI had a legal duty to maintain a safe workplace for sorting
employees. California law requires employers to “furnish employment and a place of
employment that is safe and healthful for the employees therein.” Cal. Lab. Code §
6400(a). In the multiemployer context, the California Division of Occupational Safety
and Health (“Cal/OSHA”) may cite a user employer for creating a hazard to which it
exposes any employees who are on its premises. See id. §§ 6400(b)(2) & (4); Cal. Code
Regs. tit. 8, § 336.10. Additionally, a user employer which is “responsible, by contract or
through actual practice, for safety and health conditions on the worksite” may be cited for
exposing employees on its premises to unsafe conditions. See Cal. Lab. Code §§
6400(b)(2) & (3).13 The Board should not ignore or discount the control retained and
exercised by BFI in order to comply with these legal duties.
Similarly, the Board should not discount control exercised by a user employer by
virtue of its status as the owner of the property where supplier employees work. See, e.g.,
Hychem Constructors, 169 NLRB at 276; Serv. Emp. Union, Local 87, 312 NLRB at 753
13 Although California operates a state plan to administer the federal Occupational Safety
and Health Act, see Cal. Lab. Code § 50.7(a), federal law creates analogous duties for
user employers on multiemployer worksites. See Occupational Safety & Health Admin.,
Dep’t of Labor, CPL 02-00-124, OSHA Instruction: Multiemployer Citation Policy (Dec.
10, 1999). This policy requires a user employer with general authority over the worksite
to correct safety and health violations and to avoid causing hazardous conditions that
violate OSHA regulations. See id.
22
n.113; Southern Cal. Gas Co., 302 NLRB at 461. As with control that is exercised in
order to comply with a legal duty, control that arises out of ownership of the workplace
or that is motivated by such ownership is no less control over terms and conditions of
employment. After all, all things being equal, it is certainly more likely that an entity that
owns the property where employees work is their employer than an entity that does not
own the property. User/owners typically require the supplier’s employees to abide by the
user’s rules when they enter the premises. The user may impose these restrictions on the
employees in the service agreement or by directly enforcing the rules of the workplace.
These rules often govern mandatory subjects of bargaining, such as the hours and days of
the week when work may be performed, uniforms or other insignia, security procedures,
drug and alcohol screening, and safety protocols. See, e.g., S.S. Kresge Co. v. NLRB, 416
F.2d 1225, 1230 nn. 8 & 9 (6th Cir. 1969); Gallenkamp Stores Co. v. NLRB, 402 F.2d
525, 529 (9th Cir. 1968). Wholly discounting these forms of control by attributing them
to ownership of the workplace simply makes no sense.
In applying its joint employer standard, the Board should consider all control
possessed and exercised by a putative joint employer in determining whether, considered
as a whole, the entity “meaningfully affects” terms and conditions of employment.
4. The Board Should Hold that Authority to Control Is Sufficient
Finally, the Board’s constricted application of its joint employer standard has led
it to disregard a putative joint employer’s authority to control terms and conditions of
employment and recognize only control that is actually exercised. For instance, in AM
Property Holding Corp., 350 NLRB at 1000, the Board discounted a contractual
provision that subjected the supplier’s employees to initial approval by the user
23
employer. The Board stated that it did not “rely merely on the existence of such
contractual provisions, but rather looks to the actual practice of the parties.” Id. In a
partial concurrence, Member Liebman observed that the Board’s application of this test
yielded troubling results, whereby although the user employer, “in a very real sense,
determined who worked at the building,” because “the record evidence does not
conclusively establish that [the user employer] was directly involved in actual hiring
decisions with respect to individual employees,” it was not held to be a joint employer.
350 NLRB at 1012. See also Goodyear, 312 NLRB at 677 (concluding that an
“operational control clause . . . was not evidence of actual control because it did not
meaningfully affect . . . hiring, firing, disciplining, daily supervision, and direction” and
focusing instead on “the actual handling of day-to-day business”); TLI, 271 NLRB at
798-99 (finding a contractual provision stating that a user employer would maintain
“operational control, direction, and supervision” of the supplier’s employees to be
insufficient to establish a joint employer relationship); Southern Cal. Gas Co., 302 NLRB
at 461.
This was not always the case. The Board previously found the power to control
or affect working conditions sufficient to establish a joint employer relationship. For
example, in Cabot Corp., 223 NLRB 1388 (1976), the Board observed that the
“determining factor in an owner-contractor situation is whether the owner exercises, or
has the right to exercise, sufficient control over the labor relations policies of the
contractor or over the wages, hours, and working conditions of the contractor’s
employees from which it may be reasonably inferred that the owner is in fact an
employer of the employees.” Id. at 1388 (emphasis added).
24
The earlier approach had deep roots in the Board’s case law. For example, in
Taylor’s Oak Ridge Corp., 74 NLRB 930, 932 (1947), the Board found a joint employer
relationship premised on the user employer’s contractual right of control regardless of
whether the contractual right had been exercised. “That the Employer’s power of control
may not in fact have been exercised is immaterial, since the right to control, rather than
the actual exercise of that right, is the touchstone of the employer-employee
relationship.” Id. See also Jewel Tea Co., 162 NLRB 508, 510 (1966); Hoskins Ready-
Mix Concrete, Inc., 161 NLRB 1492, 1493 & n.2 (1966); Spartan Dep’t Stores, 140
NLRB 608, 609 (1963); Frostco Super Save Stores, Inc., 138 NLRB 125, 127-28 (1962);
General Motors Corp., 60 NLRB 81, 83-84 (1945); Bethlehem-Fairfield Shipyard, Inc.,
53 NLRB 1428, 1431 (1943); Solvay Process Co., 26 NLRB 650, 655-56 (1940); Sierra
Madre-Lamanda Citrus Ass’n, 23 NLRB 143, 149-50 (1940). In West Texas Utilities
Co., 108 NLRB 407, 414 (1954), the service agreement “authorized [the user employer],
in its discretion, to control the tenure of the [supplier employer’s] employees on the
project.” The Board described the relationship between the user and supplier employers
as “that of dual employers insofar as the hire and tenure of employees on the project was
concerned, with [the supplier] having the primary right to hire and discharge and the
[user] having the contractual right to veto [the supplier’s] determination in these matters.”
Indeed, as the Board held in Thriftown, Inc., 161 NLRB 603, 607 (1966), in finding a
joint employer relationship, “[s]ince the power to control is present by virtue of the
operating agreement, whether or not exercised, we find it unnecessary to consider the
actual practice of the parties regarding these matters as evidenced by the record.”
25
The Board’s earlier position is consistent with the common law, which looks to
the putative employer’s authority over the worker in question, and not the actual exercise
of that authority to determine whether an employment relationship existed. See
Restatement (Second) of Agency, § 220(1). “Under this [common law] test, it is the right
to control, and not actual control or supervision, which is important.” Mitchell Bros., 249
NLRB at 479-80. The Third Circuit’s observation over sixty years ago in considering
contractual controls that provided that “the operation of all leased vehicles and equipment
shall [be] under exclusive and direct supervision and control of [the] Company” remains
on point: “[i]f the Company has not reserved by this language the right to control the
manner and means of driving these tractor-trailers and loading and unloading them, there
are not words in the English language capable of doing so.” Nu-Carriers v. NLRB, 189
F.2d 756, 758-59 (3d Cir. 1951).
The Board’s earlier approach is also consistent with its supervisor determinations.
The Board has long held that the possession of authority is sufficient to find individuals
to be supervisors under the Act, regardless of whether that authority is exercised. See,
e.g., Pepsi-Cola Co., 327 NLRB 1062, 1064 (1999) (disputed individuals “possess the
authority to discharge… and that authority is sufficient to find them to be statutory
supervisors,” even where some of the individuals had not exercised the authority); King
Trucking Co., 259 NLRB 725, 729 (1981) (“The fact that [disputed individual] was
authorized to discharge employees, without more, is sufficient to show that he was a
supervisor.”) (citing Ohio Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1949) (“It is
the existence of the power which determines the [supervisor] classification.”)). Authority
26
to control is sufficient to find of supervisory status under the Act;14 it should be the same
for joint employer determinations because both determinations are intended to identify
entities (or individuals) that stand in a position of authority over employees’ terms and
conditions of employment.15
The user employer is not compelled to contract for authority to control workers’
terms and conditions of employment but does so for a reason. Whether it has exercised
that authority or not at the time of analysis is solely within its discretion. And, if the user
employer does decide to exercise its authority, even when it has not done so in the past,
the supplier employer is bound to and will almost surely comply. A supplier employer,
like Leadpoint, providing nothing but labor, typically has no economic leverage, and little
incentive, to deny the user employer’s demand. That is particularly the case when, as in
the instant case, the user employer can terminate the Service Agreement on short notice.
See SA 1 (Service Agreement may be terminated by either party with 30 days notice).
14 Of course, as in the supervisor context, a putative joint employer could attempt to
prove that the terms of its agreement with a supplier granted it mere “paper
authority.” North Miami Convalescent Home, 224 NLRB 1271, 1272 (1976). See, e.g.,
Lucky Cab Co., 360 NLRB No. 43 (Feb. 20, 2014), slip op. at 2 (crediting testimony that
certain workers “do not possess the authority stated in the [employee] handbook,” and
rejecting an ALJ’s “reliance on the ‘paper authority’ set forth in the handbook”). But
where the authority is the product of a bargained exchange embodied in a binding
contract in contrast to a unilaterally promulgated position description or handbook,
carrying that burden of proof is unlikely, particularly where, as explained below, the
authority is exercised on even a sporadic basis or in a routine manner.
15 We note that Section 2(11) expressly states that “[t]he term ‘supervisor’ means any
individual having authority, in the interest of the employer, to . . . .” while Section 2(2)
has no parallel language. 29 U.S.C. §§ 152(11) (emphasis added) & (2). But Congress’
inclusion of that language in the definition of supervisor should suggest that “having
authority” is also sufficient to render an entity an employer given the absence of a precise
definition in Section 2(2).
27
BFI retains significant authority over workers in the Service Agreement. SA 1. It
places a cap on wages, which can only be raised with BFI’s consent. Id. (caps wages at
rates BFI pays for same work). BFI caps the tenure of workers assigned to its facilities at
six months. Id. at 2. BFI retains the right to reject or discontinue the use of any
Leadpoint worker at any time and for any or no reason. Id. at 4. BFI possesses the
authority to deny payment to Leadpoint for any hours worked where the worker fails to
have a BFI manager sign his/her timecard. Id. It is clear that BFI retains authority over
significant terms and conditions of employment. And, due to BFI’s economic leverage
over Leadpoint, this authority is real, whether BFI uses its discretion to exercise it or not.
This retained authority is often evidenced by sporadic examples of direct
supervision or direction that the Board has dismissed as “limited and routine.” See, e.g.,
AM Prop. Holding Corp., 350 NLRB at 1001. But such exercises of authority should not
be disregarded on that grounds. This is especially the case where the workers are
providing unskilled labor, or where the workers are highly skilled. In neither case is
continuous supervision or direction by the user employer required. In relation to both
these categories of employees, the Board and courts have often recognized that a user
employer has authority over working conditions even if it is seldom necessary to exercise
such authority. As the First Circuit held, “[t]hat the referred employees were professional
nurses who may not have required much instruction as to how to perform their work does
not negate the power of supervision and direction that [the user] exercised over them
once they reported for work.” Holyoke Visiting Nurses Ass’n v. NLRB, 11 F.3d 302, 307
(1st Cir. 1993). “The absence of need to control should not be confused with the absence
of right to control. The right to control contemplated by . . . the common law as an
28
incident of employment requires only such supervision as the nature of the work
requires.” McGuire v. United States, 349 F.2d 644, 646 (9th Cir. 1965). As the Board
recognized decades ago, “[t]he facts and circumstances from which possession of such
power to control may be determined vary from case to case, and are dependent in large
measure upon the nature of the functions in question and the degree to which the
possibility of detailed supervision is present in such functions.” San Marcos Tel. Co., 81
NLRB 314, 317 (1949).
Among unskilled employees it is also true that “where the nature of a person’s
work requires little supervision, there is no need for actual control.” Air Terminal Cab,
Inc. v. United States, 478 F.2d 575, 580 (8th Cir. 1973). As the Fifth Circuit observed in
holding unskilled crab pickers to be employees, “[t]hough [the putative employer] did not
control the intimate details of the pickers’ work, the degree of control necessary for a
particular endeavor is of necessity commensurate with the nature of that task. Picking
crabs is a simple task that does not require much supervision.” Breaux and Daigle, Inc.
v. United States, 900 F.2d 49, 52 (5th Cir. 1990).
The record contains several examples where BFI has sporadically directed
workers in the proposed unit. BFI managers come to the line and instruct workers on
what materials to remove. Tr. 244:22-245:10; 222:2-6; 282:6-19. BFI also held a
meeting instructing swing shift workers what items need to be sorted out and what items
receive priority. Tr. 246:17-23; 259: 24–260:5. The Regional Director discounted these
and other examples as “merely routine in nature,” and thus concluded that they did not
evidence the requisite joint control of daily work. DDE 18. But these examples show
BFI’s retained control over sorters working in its facility. BFI establishes the procedures
29
for sorting materials at its facility; it trains the Leadpoint supervisors so that those
supervisors can train the line workers; and it ensures compliance through direction when
it views workers failing to comply with its procedures. That those instances of direction
are sporadic is a sign that the unskilled work does not require constant supervision and
direction by BFI, not that BFI does not control the employees’ daily work.
Conclusion
In Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), the Supreme Court
recognized that “whether [a user employer] possesse[s] sufficient indicia of control to be
an ‘employer’ [under the NLRA] is essentially a factual issue.” The adjustments of the
Board’s standard and its application we suggest here will permit the Board to consider all
relevant facts in making that increasingly important determination.
Respectfully Submitted,
/s/ Craig Becker
Craig Becker
Lynn Rhinehart
Maneesh Sharma
AFL-CIO
815 16th Street, NW
Washington, DC 20006
(202) 637-5066
CERTIFICATE OF SERVICE
I, Maneesh Sharma, hereby certify that on June 26, 2014, I caused to be served a
copy of the foregoing Brief on behalf of the American Federation of Labor and Congress
of Industrial Organizations as Amicus Curiae in Browning-Ferris Industries, Case 32-RC-
109684, by electronic mail on the following:
Via E-Mail:
Lester Heltzer, Executive Secretary
Office of the Executive Secretary
National Labor Relations Board
1099 14th Street N.W., Room 11602
Washington, D.C. 20570-0001
Thomas M. Stanek
Elizabeth M. Townsend
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2415 E. Camelback Road, Suite 800
Phoenix, AZ 85016
Email:
Michael G. Pedhirney
Littler Mendelson
650 California Street, 20th Floor
San Francisco, CA 94108
Email: [email protected]
Adrian Barnes
Beeson, Tayer & Bodine, APC
483 9th Street
Oakland, CA 94607
Email: [email protected]
/s/ Maneesh Sharma
AFL-CIO
815 16th Street, NW
Washington, DC 20006
Telephone: (202) 637-5336
E-Mail: [email protected]