Browning-Ferris Industries of v. NLRB , 911 F.3d 1195 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2017 Decided December 28, 2018
No. 16-1028
BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., DOING
BUSINESS AS BFI NEWBY ISLAND RECYCLING,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
TEAMSTERS LOCAL 350,
INTERVENOR
Consolidated with 16-1063, 16-1064
On Petition for Review and Cross-Application and
Application for Enforcement of an Order of
the National Labor Relations Board
Joshua L. Ditelberg argued the cause for petitioner.
With him on the briefs was Stuart Newman.
Greg Abbott, Governor, Office of the Governor for the
State of Texas, and Adam W. Aston, Deputy General Counsel
at the time the brief was filed, Office of the Attorney General
2
for the State of Texas, were on the brief for amicus curiae the
Governor of Texas in support of petitioner.
Linda E. Kelly, Peter Kirsanow, Maynard A. Buck, and
Richard Hepp were on the brief for amici curiae National
Association of Manufacturers, et al. in support of petitioner.
Robert M. Loeb, Naomi Mower, Jeremy Peterman, and
Tom Burt were on the brief for amici curiae Microsoft
Corporation and HR Policy Association in support of
petitioner.
Ronald Meisburg, Andrea R. Calem, and Kurt G.
Larkin were on the brief for amici curiae Associated Builders
and Contractors, et al. in support of petitioner.
Richard A. Samp was on the brief for amicus curiae
Washington Legal Foundation in support of petitioner.
Adam G. Unikowsky, Kathryn Comerford Todd, Steven
P. Lehotsky, and Warren Postman were on the brief for amici
curiae The Chamber of Commerce of the United States of
America and The Retail Litigation Center, Inc. in support of
petitioner.
Joel A. Heller, Attorney, National Labor Relations
Board, was on the brief for respondent. With him on the brief
were Richard F. Griffin, Jr., General Counsel at the time the
brief was filed, John H. Ferguson, Associate General Counsel
at the time the brief was filed, Linda Dreeben, Deputy
Associate General Counsel, and Jill A. Griffin, Supervisory
Attorney.
3
Harold Craig Becker argued the cause for intervenor.
With him on the brief were James B. Coppess, Maneesh
Sharma, Teague P. Paterson, and Susan K. Garea.
P. David Lopez, General Counsel at the time the brief
was filed, Jennifer S. Goldstein and Gail S. Coleman,
Attorneys, Equal Employment Opportunity Commission, were
on the brief for amicus curiae Equal Employment Opportunity
Commission in support of respondent.
Before: MILLETT and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Senior Judge RANDOLPH.
MILLETT, Circuit Judge: Browning-Ferris Industries of
California, Inc. operates one of the largest recycling plants in
the world. To operate its plant, Browning-Ferris contracts with
Leadpoint Business Services to provide workers to sort through
the incoming material, clear jams that occur in the sorting
process, and keep the sorting areas clean. In 2013, a local union
petitioned to represent those workers as a bargaining unit under
the National Labor Relations Act, see 29 U.S.C. § 159(a),
designating Browning-Ferris and Leadpoint as “joint
employers” of the workers.
In concluding that Browning-Ferris and Leadpoint
were joint employers of the workers in the petitioned-for unit,
the National Labor Relations Board ruled that it would consider
a putative joint employer’s reserved right to control the
workers at issue, as well as any indirect control exercised over
the workers, as among a number of factors relevant to
4
determining joint-employer status. Browning-Ferris
challenges both of those aspects of the Board’s test.
We hold that the right-to-control element of the Board’s
joint-employer standard has deep roots in the common law.
The common law also permits consideration of those forms of
indirect control that play a relevant part in determining the
essential terms and conditions of employment. Accordingly,
we affirm the Board’s articulation of the joint-employer test as
including consideration of both an employer’s reserved right to
control and its indirect control over employees’ terms and
conditions of employment. But because the Board did not
confine its consideration of indirect control consistently with
common-law limitations, we grant the petition for review in
part, deny the cross-application for enforcement, dismiss
without prejudice the application for enforcement as to
Leadpoint, and remand for further proceedings consistent with
this opinion.
I
A
Congress enacted the National Labor Relations Act of
1935, 29 U.S.C. § 151 et seq., to “protect the right of workers
to act together to better their working conditions,” NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962), and to
“promot[e] stable collective-bargaining relationships,”
Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996).
To that end, the Act mediates the relationship between
“employees” and “employers” by, among other things,
conferring upon employees a right to unionize, 29 U.S.C.
§ 157, prohibiting employers from engaging in specified unfair
labor practices, id. § 158(a), and imposing obligations on
employers to collectively bargain with representatives of
5
employees, id. § 158(d). The National Labor Relations Board
is charged with administering the Act. Id. § 153; NLRB v. SW
General, Inc., 137 S. Ct. 929, 937 (2017).
But how do those statutory obligations on employers
work when an employee has more than one putative employer?
After all, a Board order that an employer bargain with a union
over the terms and conditions of employment may well be
futile if another entity, not subject to an order to bargain,
exercises the final say over a working condition or has the
power to override a choice negotiated in a
collective-bargaining agreement. See Herbert Harvey, Inc. v.
NLRB, 385 F.2d 684, 686 (D.C. Cir. 1967) (discussing such a
situation). To address that not-uncommon scenario, the Board
has long recognized that two entities may be joint employers in
the eyes of the National Labor Relations Act. See, e.g.,
Franklin Simon & Co., 94 N.L.R.B. 576, 579 (1951). This case
involves the standard that the Board applies in making that
joint-employer determination.
On this point, the National Labor Relations Act gives
no direct guidance. The Act provides no relevant definition of
“employer,” let alone of “joint employer.” See 29 U.S.C.
§ 152(2) (providing only that the term “employer” “includes
any person acting as an agent of an employer, directly or
indirectly” and excluding listed entities not relevant here).
The Supreme Court, meanwhile, has addressed the
question of joint-employer status under the Act only once. In
Boire v. Greyhound Corp., 376 U.S. 473 (1964), the Court held
that a putative joint employer must “possess[] sufficient control
over the work of the employees to qualify as a joint employer,”
id. at 481. That inquiry, the Court stressed, is essentially
“factual,” and is not controlled by the fact that one putative
employer is an independent contractor of another. See id.
6
In the years that followed, the test that courts and the
National Labor Relations Board applied to determine
joint-employer status resisted consistency or reliable
delineation. Compare, e.g., Springfield Ret. Residence, 235
N.L.R.B. 884, 891 (1978) (finding joint-employer status where
employer had the power to hire and fire), with, e.g., Mobil Oil
Corp., 219 N.L.R.B. 511, 515–516 (1975) (finding joint-
employer status where employer had the power to set working
conditions and make personnel decisions).
Almost twenty years later, the Third Circuit articulated
a standard around which both the Board and courts began to
coalesce. In NLRB v. Browning-Ferris Industries of
Pennsylvania, Inc., 691 F.2d 1117 (3d Cir. 1982), the Third
Circuit ruled that separate business entities are joint employers
if they each “exert significant control over the same
employees” in that they “share or co-determine those matters
governing essential terms and conditions of employment,” id.
at 1124; see also id. at 1123. The Board soon adopted that same
articulation of the test. See TLI, Inc., 271 N.L.R.B. 798, 798
(1984); Laerco Transp. & Warehouse, 269 N.L.R.B. 324, 325
(1984).
This court’s test for joint-employer status, like that of a
number of other circuits, echoes the Third Circuit’s standard,
holding that “[t]wo separate entities may be joint employers of
‘a single * * * [work force] if they share or co-determine those
matters governing [the] essential terms and conditions of
employment,’” Dunkin’ Donuts Mid-Atlantic Distrib. Ctr., Inc.
v. NLRB, 363 F.3d 437, 440 (D.C. Cir. 2004) (quoting
Aldworth Co., 338 N.L.R.B. 137, 139 (2002)). See also 3750
Orange Place Ltd. P’ship v. NLRB, 333 F.3d 646, 660 (6th Cir.
2003); Holyoke Visiting Nurses Ass’n v. NLRB, 11 F.3d 302,
306 (1st Cir. 1993).
7
Following Laerco and TLI, however, the Board added
additional requirements that constricted the joint-employer
test. For one thing, the Board said that a joint-employer
relationship depends on evidence of the actual exercise of
control by each employer, not merely a reserved right to
control. See AM Property Holding Corp., 350 N.L.R.B. 998,
1000 (2007) (Board “does not rely merely on the existence
of * * * contractual provisions” to determine whether a
joint-employer relationship exists, but “rather looks to the
actual practice of the parties”). In addition, the Board held that
“[t]he essential element in [the] analysis is whether a putative
joint employer’s control over employment matters is direct and
immediate.” In re Airborne Freight Co., 338 N.L.R.B. 597,
597 n.1 (2002). For several years, then, the Board would rely
in analyzing joint-employer claims only on evidence of
(i) actual control, as opposed to the right to control, and
(ii) direct and immediate control, not indirect control. See
NLRB v. CNN America, Inc., 865 F.3d 740, 748–749 (D.C. Cir.
2017).
The Board’s decision in this case changed both of those
factors by making the right to control and indirect control
relevant considerations in determining joint employer status.
B
Browning-Ferris operates the Newby Island Recyclery
in Milpitas, California. As one of the largest recycling facilities
in the world, Newby Island receives approximately 1,200 tons
of mixed materials, waste, and recyclables every day. Inside
the facility, four conveyor belts—called “sort lines” or
“material streams”—carry different categories of materials that
must be sorted so that the remaining portion may be recycled.
8
This case involves three groups of Newby Island
workers: sorters, screen cleaners, and housekeepers. Sorters,
as the title suggests, remove and sort non-recyclable materials
from the stream lines coming into the facility. Screen cleaners
clear jams in the sort lines. Housekeepers clean the areas
around the sort lines.
Browning-Ferris, by itself, employs approximately
sixty workers at Newby Island. Most of those individuals work
outside of the facility as loader operators, equipment operators,
forklift operators, and sort-line equipment operators. One of
those Browning-Ferris employees, however, is a sorter.
Browning-Ferris also has supervisors who oversee and manage
the operations of its employees. While Browning-Ferris
employs the one sorter, it does not by itself employ the other
sorters, or any screen cleaners or housekeepers. Instead,
Browning-Ferris contracts with a staffing agency to provide
those workers.
In 2009, Browning-Ferris entered into an exclusive
service contract with Leadpoint, known as the Temporary
Labor Services Agreement (“Agreement”), to staff Newby
Island’s sorting, screen cleaning, and housekeeping positions.
Leadpoint provides approximately 240 workers for Browning-
Ferris’s Newby Island plant, most of whom fill the sorting,
screen cleaning, and housekeeping positions. In addition,
Leadpoint employs its own onsite managers and supervisors
who oversee the sorters, screen cleaners, and housekeepers.
Under the Agreement, Leadpoint handles the hiring of
workers from start to finish, but must ensure that the sorters,
screen cleaners, and housekeepers at Newby Island meet
certain conditions and qualifications required by
Browning-Ferris in the Agreement. Those conditions include
passing a “five-panel urinalysis drug screen” or equivalent drug
9
test, and “hav[ing] the appropriate qualifications * * *,
consistent with all applicable laws and instructions from
[Browning-Ferris], to perform the general duties of the
assigned position.” J.A. 19. The Agreement further provides
that Leadpoint workers cannot be assigned to Newby Island for
more than six months at a time. But evidence in the record
indicates that the time limit is not consistently enforced and
some Leadpoint workers have continued working for more than
six months.
Leadpoint “has the sole responsibility to counsel,
discipline, review, evaluate, determine pay rates, and
terminate” the workers that it provides to Browning-Ferris.
J.A. 20. Browning-Ferris “reserves the right to ensure that”
personnel from Leadpoint work “free from the effects of
alcohol and illegal drug use.” Id. Browning-Ferris also “may
reject” or “discontinue the use of” a worker at its facility “for
any or no reason.” J.A. 21.
Leadpoint is responsible for paying the workers, as well
as providing their benefits and unemployment insurance.
Leadpoint determines the wages the workers will be paid, and
it sends Browning-Ferris weekly invoices documenting the
services performed and the total hours clocked by the workers.
While Browning-Ferris generally has no direct input on the
wages that Leadpoint pays, a March 2013 increase in the local
minimum wage prompted Leadpoint and Browning-Ferris to
amend the Agreement’s wage schedule to comply with the new
law. In addition, the Agreement provides that Leadpoint
workers may not, without approval from Browning-Ferris, earn
a higher wage than that earned by any Browning-Ferris worker
performing similar tasks. The lone Browning-Ferris sorter
earns approximately five dollars more per hour than all of the
Leadpoint sorters.
10
For all workers at Newby Island, Browning-Ferris has
determined that there will be three shifts per day, and it sets the
hours for those shifts. Each shift lasts approximately eight
hours, but may occasionally run into overtime. In addition,
Browning-Ferris supervisors decide daily which of the four sort
lines will run and provide Leadpoint supervisors with a target
headcount of how many workers will be needed to operate
those lines. Browning-Ferris does not decide which workers
will work on which sort lines or during which shifts; Leadpoint
makes that call. If Browning-Ferris supervisors determine that
a sort line will run overtime, they convey that information to
Leadpoint supervisors, who then make the necessary staffing
arrangements.
The Board found inconsistencies in the frequency and
nature of Browning-Ferris supervisors’ communications with
the workers. Some Browning-Ferris supervisors testified that
their only direct communication with the workers involved
referring the workers and any problems they raised to
Leadpoint supervisors. According to those Browning-Ferris
supervisors, they did not directly or specifically instruct those
workers on how to perform their jobs. Instead, if they spotted
something untoward, they would just tell Leadpoint
supervisors “that there’s a problem.” J.A. 141. For example,
the sorting lines are designed with an emergency stop switch to
halt the flow of materials. One Browning-Ferris supervisor
explained that he and his colleagues generally instruct
Leadpoint supervisors, not the workers, on when the
emergency stop switch can be used. They left it up to the
Leadpoint supervisors to convey that information to the sorters.
Some workers at the Newby facility had different
experiences. They testified that Browning-Ferris supervisors
would occasionally direct the workers’ removal of materials
from the sort lines or their cleaning of certain areas, and would
11
also warn them against pressing the emergency stop switch too
frequently. In addition, a Browning-Ferris supervisor admitted
that he had at times held informal meetings with sorters to teach
them how to differentiate between organic and inorganic
material on the sort lines.
Although the Agreement makes Leadpoint ultimately
responsible for disciplining the workers it provides,
Browning-Ferris has, on occasion, alerted Leadpoint
supervisors to incidents that Browning-Ferris believed
warranted disciplinary action. For example, in June 2013, a
Browning-Ferris supervisor, Paul Keck, sent an email
“request[ing] the[] immediate dismissal” of a worker seen
passing a bottle of alcohol and the worker to whom it was
passed. J.A. 34. A Leadpoint supervisor questioned both
workers and sent them to a clinic for drug and alcohol testing.
Based on the results of the testing, one of the workers was
terminated from Leadpoint’s employ, and the other continued
to work for Leadpoint, but was reassigned to another
company’s facility. Keck later testified that he did not know
what action Leadpoint had taken with respect to those two
workers, although he noticed that one was no longer at Newby
and was unsure about the other.
In that same e-mail, Keck informed the Leadpoint
supervisor that he had reviewed video surveillance tapes
showing a Leadpoint worker damaging a wall mount. Keck
closed the e-mail by stating: “I hope you’ll agree [that] this
Leadpoint employee should be immediately dismissed.” J.A.
34. Following the e-mail, Leadpoint supervisors first
suspended and then terminated the worker involved for
destroying or defacing property. Keck again testified that he
did not follow up to learn what happened to that employee.
12
On another occasion, Keck advised a Leadpoint
supervisor that the size of a pre-sort line should be reduced by
two workers per shift, and that two other workers on the
pre-sort line should be repositioned. The e-mail closed with:
“This staffing change is effective Monday, August 5, 2013.”
J.A. 32.
C
1
In July 2013, the International Brotherhood of
Teamsters Local 350 (“Union”) filed a petition with the Board
seeking to represent a new bargaining unit consisting of “full
time and regular part-time employees” that were “employed by
[Leadpoint] and [Browning-Ferris], joint employers,” at
Newby Island. J.A. 344. As relevant here, the petitioned-for
unit included Leadpoint sorters, housekeepers, and screen
cleaners, but not Leadpoint supervisors. At the time, the Union
already represented a separate bargaining unit consisting of the
sixty workers at Newby Island directly employed by
Browning-Ferris, including the sole Browning-Ferris sorter.
After an evidentiary hearing, the Acting Regional
Director concluded that Browning-Ferris and Leadpoint were
not joint employers of the workers in the petitioned-for
bargaining unit. Instead, the Director concluded that
employees of Leadpoint alone composed the appropriate
bargaining unit, and directed that an election be held for that
unit. In the Director’s view, the evidence was insufficient to
establish that Browning-Ferris controlled or co-determined
those matters governing the essential terms and conditions of
the workers’ employment, such as wages, benefits, hiring,
discipline, termination, daily work responsibilities, and shift
schedules.
13
The Union filed a petition for review, and the Board
solicited briefing from the parties and any interested amici on
whether the joint-employer test should be updated and how it
should apply in this case. On August 27, 2015, the Board
issued a decision concluding that Browning-Ferris and
Leadpoint are joint employers of the workers in the
petitioned-for bargaining unit. Browning-Ferris Indus. of Cal.,
Inc., 362 N.L.R.B. No. 186, at 2 (Aug. 27, 2015). In so ruling,
the Board “restate[d]” and “reaffirm[ed]” its longstanding
joint-employer standard, adopted from the Third Circuit’s
Browning-Ferris decision, under which “two or more statutory
employers are joint employers of the same statutory employees
if they ‘share or codetermine those matters governing the
essential terms and conditions of employment.’” Id. (citation
omitted).
In applying that test, the Board announced for the first
time that it would subdivide the inquiry, asking first “whether
there is a common-law employment relationship with the
employees in question.” Browning-Ferris, 362 N.L.R.B. No.
186, at 2. If so, the Board would ask secondly “whether the
putative joint employer possesses sufficient control over
employees’ essential terms and conditions of employment to
permit meaningful collective bargaining.” Id. In applying both
prongs of that test, the Board announced that it would “no
longer require that a joint employer not only possess the
authority to control employees’ terms and conditions of
employment, but also exercise that authority.” Id. Nor would
the Board anymore demand that “a statutory employer’s
control * * * be exercised directly and immediately” “to be
relevant to the joint-employer inquiry.” Id. Instead, the Board
would consider both reserved control and indirect control as
potentially “probative” in the joint-employer analysis. See id.
at 2, 13, 16, 17 n.94.
14
Applying that test, the Board concluded that Browning-
Ferris and Leadpoint were joint employers of the workers in
the petitioned-for bargaining unit. Browning-Ferris, 362
N.L.R.B. No. 186, at 20. Among the evidence the Board
viewed as demonstrating Browning-Ferris’s control were
Keck’s reports of misconduct by workers and requests for their
discipline and removal; Browning-Ferris’s control over the
speed of the sort lines, including direct admonitions to workers
to sort faster, work smarter, and not stop the sort lines; and the
contractual condition that workers earn no more than
Browning-Ferris employees performing similar work. Id. at
18–20.
Two members of the Board dissented. In their view,
the requirements that control actually be exercised and that it
be direct and immediate were required by the common law of
agency. See Browning-Ferris, 362 N.L.R.B. No. 186, at 28–
32 (Members Miscimarra & Johnson, dissenting). The dissent
also expressed concern that retroactive application of the new
aspects of the test would disrupt the longstanding expectations
of parties who had structured their labor relationships based on
the Board’s previous joint-employer standard. See id. at 22–
23.
Browning-Ferris timely petitioned for review of the
Board’s order, while the Board cross-applied for enforcement
of the order against Browning-Ferris and separately applied for
enforcement of the order against Leadpoint.1
1
Although Leadpoint participated in the proceedings before
the Board, Leadpoint did not petition for review of the Board’s order
or enter an appearance before this court in this case. Leadpoint
accordingly has forfeited any challenges of its own to the Board’s
order. But because the relief ordered by the Board is inextricably
15
2
While this case was pending, the Board again changed
course on the joint-employer question. In Hy-Brand Industrial
Contractors, Ltd., 365 N.L.R.B. No. 156 (Dec. 14, 2017) (later
overruled by Hy-Brand Industrial Contractors, Ltd., 366
N.L.R.B. No. 26 (Feb. 26 2018)), the Board expressly
overruled its Browning-Ferris decision and announced that “a
finding of joint-employer status” would require (1) “proof that
the alleged joint-employer entities have actually exercised joint
control over essential employment terms (rather than merely
having ‘reserved’ the right to exercise control),” (2) the control
exercised “must be ‘direct and immediate’ (rather than
indirect),” and (3) “joint-employer status will not result from
control that is ‘limited and routine.’” Id. at 35.
Following the Hy-Brand decision, the Board moved
this court to remand Browning-Ferris’s case to the agency for
further consideration. We granted that motion on December
22, 2017.
While that remand was still pending before the Board,
an investigation conducted by the Board’s Inspector General
uncovered that one of the Board members that decided the
Hy-Brand case was a shareholder in the law firm that
represented Leadpoint before the Board in Browning-Ferris.
On that basis, the Inspector General concluded that the
Member’s participation in the Hy-Brand decision amounted to
“a serious and flagrant problem and/or deficiency in the
bound up in Leadpoint’s joint-employer status with
Browning-Ferris, we dismiss the application for enforcement as to
Leadpoint without prejudice.
16
Board’s administration of its deliberative process.”
Memorandum of NLRB Inspector General David P. Berry
(Feb. 9, 2018), available at https://www.nlrb.gov/who-we-
are/inspector-general. The Inspector General explained that
“the practical effect of the Hy-Brand deliberative process was
a ‘do over’ for the Browning-Ferris parties,” and so that
Member should have recused himself. Id. at 2, 5.
In light of the Inspector General’s report, the Board
unanimously vacated its Hy-Brand decision and announced
that “the overruling of the Browning-Ferris decision is of no
force or effect.” Hy-Brand Industrial Contractors, Ltd., 366
N.L.R.B. No. 26 (Feb. 26, 2018). The Board then moved this
court to recall its remand mandate and asked this court to
proceed with resolving Browning-Ferris’s petition for review
and the Board’s cross-application for enforcement. We granted
that motion on April 6, 2018, and recalled our mandate, but
held the case in abeyance pending the Board’s disposition of
Hy-Brand’s motion for reconsideration. The Board denied
reconsideration two months later. Hy-Brand Industrial
Contractors, Ltd., 366 N.L.R.B. No. 93 (June 6, 2018).
On May 9, 2018, the Board announced its plan to
undertake a rulemaking on the standard for joint-employer
status. The Board was explicit that any new rule that might
result from that process would be prospective only.
Browning-Ferris Mot. to Remand at 9, 12 (June 13, 2018).
In June 2018, the Board specifically requested that this
court proceed to decide the case, notwithstanding the pending
rulemaking. See Board Opp. to Mot. to Remand (June 15,
2018); see also Board Mot. to Govern Future Proceedings
(June 13, 2018); Tr. of Oral Argument at 13 (July 3, 2018).
17
On September 14, 2018, the Board published its notice
of proposed rulemaking that suggested reinstating its prior
“direct and immediate control” test for joint-employer status.
“[T]o be deemed a joint employer under the proposed
regulation, an employer must possess and actually exercise
substantial direct and immediate control over the employees’
essential terms and conditions of employment of another
employer’s employees in a manner that is not limited and
routine.” 29 Fed. Reg. 46681, 46686 (Sept. 14, 2018).
Since issuing its proposed rule, the Board has reiterated
its request that this court resolve the pending petitions for
review in this case. See Letter from Linda Dreeben, Deputy
Associate General Counsel, National Labor Relations Board to
Mark J. Langer, Clerk of Court, U.S. Court of Appeals for the
District of Columbia Circuit (September 19, 2018).
II
We start with the question of what, if any, deference is
owed to the Board’s adjustments to the joint-employer
standard. The Board claims that its “reasonable” judgment
merits “considerable deference.” See Board Br. 16 (citations
omitted); cf. Chevron, U.S.A., Inc. v. Natural Resources Def.
Council, Inc., 467 U.S. 837, 842–844 (1984) (courts defer to
an agency’s “reasonable interpretation” of ambiguous terms in
a statute administered by the agency). Browning-Ferris says
that the Board gets no deference. We hold that, to the extent
that the Board’s joint-employer standard is predicated on
interpreting the common law, Browning-Ferris is correct. The
content and meaning of the common law is a pure question of
law that we review de novo without deference to the Board.
Under Supreme Court and circuit precedent, the
National Labor Relations Act’s test for joint-employer status is
18
determined by the common law of agency. The Supreme Court
has often held that, when Congress leaves undefined statutory
terms like “employee” and “employer” that have longstanding
common-law meanings, courts should presume that Congress
intended to incorporate those meanings, unless the statute,
directs otherwise. See Microsoft Corp. v. i4i Ltd. P’ship, 564
U.S. 91, 103 (2011) (“Where Congress uses terms that have
accumulated settled meaning under * * * the common law,
[we] must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
those terms.”) (alterations in original) (quoting Neder v. United
States, 527 U.S. 1, 21 (1999)); Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 739–740 (1989) (“[W]hen
Congress has used the term ‘employee’ without defining
it, * * * Congress intended to describe the conventional
master-servant relationship as understood by common-law
agency doctrine.”); id. (citing additional cases holding that
“employee,” “employer,” and “scope of employment” must be
interpreted in light of agency law).
That presumption applies with full force to the
employer-employee relationship under the National Labor
Relations Act. In NLRB v. Hearst Publications, Inc., 322 U.S.
111 (1944), the Supreme Court bypassed the common-law
meaning of “employee” in favor of a definition that potentially
swept in independent contractors, reasoning that the latter
definition better advanced the policies underlying the National
Labor Relations Act, see id. at 131–132. Congress promptly
and emphatically rejected that approach, amending the Act to
specifically exclude “independent contractors” from the Act’s
definition of “employees.” See Labor Management Relations
Act of 1947, Pub. L. 80–101, 61 Stat. 136 (codified as amended
at 29 U.S.C. §§ 141–197) (“Taft-Hartley Amendments”). “The
obvious purpose” of the Taft-Hartley Amendments, the
Supreme Court later ruled, “was to have the Board and the
19
courts apply general [common-law] agency principles in
distinguishing between employees and independent contractors
under the Act.” NLRB v. United Insurance Co. of America, 390
U.S. 254, 256 (1968); see also Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 324–325 (1992) (explaining the
congressional reaction to Hearst).
For purposes of determining our standard of review, the
lesson from the Taft-Hartley Amendments and United
Insurance is that Congress delegated to the Board the authority
to make tough calls on matters concerning labor relations, but
not the power to recast traditional common-law principles of
agency in identifying covered employees and employers.
Instead, the inquiry into the content and meaning of the
common law is a “pure” question of law, and its resolution
requires “no special administrative expertise that a court does
not possess.” United Insurance, 390 U.S. at 260.
For that reason, we review the Board’s interpretation of
the common law de novo. See FedEx Home Delivery v. NLRB,
849 F.3d 1123, 1128 (D.C. Cir. 2017) (“[T]his particular
question [regarding who is an employee or independent
contractor] under the Act is not one to which we grant the
Board Chevron deference[.]”); cf. International
Longshoremen’s Ass’n v. NLRB, 56 F.3d 205, 212 (D.C. Cir.
1995) (because the term “agent” in the Act “incorporat[es]
common law agency principles,” courts do not “defer to the
agency’s judgment as we normally might under [Chevron]”).
That no-deference rule applies just as much to the
common-law meaning of “employer” under the Act as it does
to that of “employee.” That is because both inquiries turn on
pure questions of law about the scope of traditional common-
20
law agency principles. Cf. Community for Creative Non-
Violence, 490 U.S. at 739–740.2
The Board argues that, even if its articulation of the
common law does not get full-fledged Chevron deference, the
proper standard of review is still not de novo. Citing language
in Atrium of Princeton, LLC v. NLRB, 684 F.3d 1310 (D.C. Cir.
2012), and International Longshoremen’s Association, 56 F.3d
at 212, the Board argues that we must accept its understanding
of the common law so long as it reflects a choice between “two
fairly conflicting views.” Board Br. 16 (citation omitted).
That is not correct. The “two fairly conflicting views”
standard applies to the Board’s application of the common law
to the facts of a particular case—which is a mixed question of
law and fact. It does not extend to the Board’s articulation of
the common law, which is a pure question of law. See FedEx,
849 F.3d at 1128; Aurora Packing Co. v. NLRB, 904 F.2d 73,
75 (D.C. Cir. 1990) (“[D]eference would only be extended to
the Board’s determination of employee status—an ‘application
2
The Supreme Court’s grant of deference to the Board in
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), does not apply here.
That case involved the very narrow question of whether a worker
should be excluded from the Act’s protections because of his status
as an undocumented foreign worker. Id. at 891. The deference
accorded to the Board thus was not to its understanding of the
common-law meaning of “employee,” but to broader policy
questions about promoting effective collective bargaining and
balancing the rights of both undocumented workers and their legally
resident coworkers. See id. at 891–892. Nor does NLRB v. Town &
Country Electric, Inc., 516 U.S. 85 (1995), help the Board. That case
presented “no * * * question” about the scope of the applicable
common law, and, in any event, the Board’s interpretation was
entirely “consistent with the common law.” Id. at 94.
 21
of law to fact’—insofar as [the Board] made a ‘choice between
two fairly conflicting views’ in a particular case.”) (quoting
United Insurance, 390 U.S. at 260). Our decisions in Atrium
of Princeton and International Longshoremen’s Association
are of the same mind. See Atrium of Princeton, 684 F.3d at
1315–1316 (rejecting the Board’s formulation of the relevant
common-law agency standard and effectively applying de novo
analysis of the common law); International Longshoremen’s
Ass’n, 56 F.3d at 213 (finding no dispute as to the “fundamental
principle of hornbook agency law” that governed, and applying
the “two fairly conflicting views” standard only to the Board’s
application of the law to the facts). We also note that the
Board’s decision in Hy-Brand agreed that courts owe its
interpretation of the common law no deference. Hy-Brand, 365
N.L.R.B. No. 156 at 4.
For those reasons, we review de novo whether the
Board’s joint-employer test comports with traditional
common-law principles of agency.
Finally, it is precisely because Congress has tasked the
courts, and not the Board, with defining the common-law scope
of “employer” that this court accepts the Board’s repeated
request that we resolve this case notwithstanding the pending
rulemaking. The policy expertise that the Board brings to bear
on applying the National Labor Relations Act to joint
employers is bounded by the common-law’s definition of a
joint employer. The Board’s rulemaking, in other words, must
color within the common-law lines identified by the judiciary.
That presumably is why the Board has thrice asked this court
to dispose of the petitions in this case during its rulemaking
process. Like the Board, and unlike the dissenting opinion (at
pp. 4–8), we see no point to waiting for the Board to take the
first bite of an apple that is outside of its orchard.
22
III
The Board was certainly correct that, for roughly the
last 25 years, the governing framework for the joint-employer
inquiry has been whether both employers “exert significant
control over the same employees” in that they “share or
co-determine those matters governing the essential terms and
conditions of employment.” Browning-Ferris, 691 F.2d at
1124. This court so held in Dunkin’ Donuts, 363 F.3d at 440.
The question in this case is whether the common-law
analysis of joint-employer status can factor in both (i) an
employer’s authorized but unexercised forms of control, and
(ii) an employer’s indirect control over employees’ terms and
conditions of employment. See Browning-Ferris, 362
N.L.R.B. No. 186, at 2. In answering that question, we look
first and foremost to the “established” common-law definitions
at the time Congress enacted the National Labor Relations Act
in 1935 and the Taft-Hartley Amendments in 1947, Microsoft,
564 U.S. at 103 (citation omitted). See Field v. Mans, 516 U.S.
59, 70 (1995) (“look[ing] to the [common-law] concept of
‘actual fraud’ as it was understood in 1978 when that language
was added to [the statute]”).
23
We conclude that the Board’s right-to-control standard
is an established aspect of the common law of agency. The
Board also correctly determined that the common-law inquiry
is not woodenly confined to indicia of direct and immediate
control; an employer’s indirect control over employees can be
a relevant consideration. The Board in Hy-Brand, in fact,
agreed that both reserved and indirect control are relevant
considerations recognized in the common law. See Hy-Brand,
365 N.L.R.B. No 156 at 4. In applying the indirect-control
factor in this case, however, the Board failed to confine it to
indirect control over the essential terms and conditions of the
workers’ employment. We accordingly remand that aspect of
the decision to the Board for it to explain and apply its test in a
manner that hews to the common law of agency.
A
1
The Board’s conclusion that joint-employer status
considers not only the control an employer actually exercises
over workers, but also the employer’s reserved but unexercised
right to control the workers and their essential terms and
conditions of employment, finds extensive support in the
common law of agency.
24
First, this court has already squarely addressed that
common-law question. In International Chemical Workers
Union Local 483 v. NLRB, 561 F.2d 253 (D.C. Cir. 1977), this
court was explicit that “[w]hether [two entities are] joint
employers” under the National Labor Relations Act “depends
upon the amount of actual and potential control that” the
putative joint employer “ha[s] over the * * * employees,” id. at
255 (emphasis added). That inquiry, we added, “depend[s]
upon the amount of and nature of control that [the putative
employer] exercise[s] and [is] authorized to exercise under the
contract.” Id. (emphasis added). This court’s decision in
International Chemical Workers is, of course, binding on this
panel. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.
1996) (en banc).
The rule established in International Chemical Workers
also makes great sense. Retained but unexercised control has
long been a relevant factor in assessing the common-law
master-servant relationship. The Supreme Court has held that
the reserved right to control certain aspects of the work
underpins the common-law master-servant dynamic. See
Chicago, Rock Island & Pac. Ry. Co. v. Bond, 240 U.S. 449,
456 (1916) (worker held not to be an employee because the
company “did not retain the right to direct the manner in which
the business should be done, as well as the results to be
accomplished, or, in other words, did not retain control not
only of what should be done, but how it should be done”)
(emphases added); Singer Mfg. Co. v. Rahn, 132 U.S. 518, 523
(1889) (“[T]he relation of master and servant exists whenever
the employer retains the right to direct the manner in which the
25
business shall be done, as well as the result to be
accomplished[.]”) (emphasis added).3
State-court decisions applying the common law of
agency are equally clear that unexercised control bears on
employer status. That was the common-law rule at the time of
the National Labor Relations Act’s passage in 1935.4 That was
3
See also Little v. Hackett, 116 U.S. 366, 376 (1886) (“[I]t is
th[e] right to control the conduct of the agent which is the foundation
of the doctrine that the master is to be affected by the acts of his
servant.”) (emphasis added) (quoting Bennett v. New Jersey R.R. &
Transp. Co., 36 N.J.L. 225, 227 (N.J. 1873)).
4
See, e.g., Norwood Hosp. v. Brown, 122 So. 411, 413 (Ala.
1929) (“[T]he ultimate question in this connection is not whether the
employer actually exercised control, but whether it had a right to
control.”); Van Watermeullen v. Industrial Comm’n, 174 N.E. 846,
847–848 (Ill. 1931) (“One of the principal factors which determine
whether a worker is an employee or an independent worker is the
matter of the right to control the manner of doing the work, not the
actual exercise of that right.”); Tuttle v. Embury-Martin Lumber Co.,
158 N.W. 875, 879 (Mich. 1916) (“[T]he test of the [employee]
relationship is the right to control. It is not the fact of actual
interference with the control, but the right to interfere, that makes the
difference between an independent contractor and a servant or
agent.”); Odom v. Sanford & Treadway, 299 S.W. 1045, 1046 (Tenn.
1927) (“[T]he ultimate question is not whether the employer actually
exercises control over the doing of the work, but whether he has the
right to control.”) (citation omitted).
26
also the common-law rule at the time of the Taft-Hartley
Amendments in 1947.5 And, for what it is worth, it is still the
common-law rule today.6
5
See, e.g., S.A. Gerrard Co. v. Industrial Accident Comm’n, 110
P.2d 377, 378 (Cal. 1941) (“[T]he right to control, rather than the
amount of control which was exercised, is the determinative factor.”)
(citing cases); Bush v. Wilson & Co., 138 P.2d 457, 457 (Kan. 1943)
(“Under [the] ‘right to control rule,’ whether a person is an
‘employee’ of another depends upon whether [the] person who is
claimed to be an employer had right to control [the] manner in which
work was done * * * but it is not necessary to show actual exercise
of control.”); Bobik v. Industrial Comm’n, 64 N.E.2d 829, 832 (Ohio
1946) (“[I]t is not * * * the actual exercise of the right by interfering
with the work but rather the right to control which constitutes the
test.”) (citation omitted); Green Valley Coop. Dairy Co. v. Industrial
Comm’n, 27 N.W.2d 454, 457 (Wis. 1947) (“It is quite immaterial
whether the right to control is exercised by the master so long as he
has the right to exercise such control.”) (citation omitted); Employers
Mutual Liability Ins. Co. v. Industrial Comm’n, 284 N.W. 548, 551
(Wis. 1939) (same) (citing additional cases).
6
See, e.g., Ayala v. Antelope Valley Newspapers, Inc., 327 P.3d
165, 172 (Cal. 2014) (“[W]hat matters under the common law is not
how much control a hirer exercises, but how much control the hirer
retains the right to exercise.”) (emphases added); Schecter v.
Merchants Home Delivery, Inc., 892 A.2d 415, 423 (D.C. 2006)
(“[T]he right to control means ‘the right to control an employee in
the performance of a task and in its result, and not the actual exercise
of control or supervision.’”) (citation omitted); Mallory v. Brigham
Young Univ., 332 P.3d 922, 928–929 (Utah 2014) (“If the principal
has the right to control the agent’s method and manner of
performance, that agent is a servant whether or not the right is
specifically exercised.”) (emphasis added).
27
In addition, the “right to control” runs like a leitmotif
through the Restatement (Second) of Agency. It starts right out
of the box with the definitional provision of the master-servant
relationship: a “master” “controls or has the right to control
the physical conduct of [another] in the performance of [a]
service,” RESTATEMENT (SECOND) OF AGENCY § 2(1), at 12
(AM. LAW INST. 1958) (emphasis added), while a “servant”
likewise “is controlled or is subject to the right to control by
the master,” id. § 2(2), at 12 (emphasis added). And that refrain
keeps repeating. See id. § 14 cmt. a, at 60 (“The extent of the
right to control the physical acts of the agent is an important
factor in determining whether or not a master-servant
relationship between them exists.”); id. § 220(1), at 485; id.
§ 250 cmt. a, at 550 (identifying the “right to control physical
details as to the manner of performance” as “characteristic of
the relation of master and servant”).
In short, “[a]t common law the relevant factors defining
the master-servant relationship focus on the master’s control
over the servant,” whether that means the servant “‘is
controlled or is subject to the right to control by the master,’”
and so that “common-law element of control is the principal
guidepost” in determining whether an entity is an employer of
another. Clackamas Gastroenterology Associates, P. C. v.
Wells, 538 U.S. 440, 448 (2003) (emphases added) (quoting
RESTATEMENT (SECOND) OF AGENCY § 2(2)).
Indeed, precedent is so clear on this point that
Browning-Ferris admitted at oral argument that the Board “can
consider” unexercised control as a relevant factor in the
joint-employer determination. Oral Arg. Tr. at 11:2. The
Board’s subsequent decision in Hy-Brand agreed as well that
reserved control may be one “indicia” that is “probative of
28
joint-employer status” under the common law. Hy-Brand, 365
N.L.R.B. No. 156 at 4.
Second, consideration of unexercised control accords
with the common law’s analogous “dual master doctrine”: the
concept that “[a] person may,” under certain circumstances,
“be the servant of two masters * * * at one time as to one act,”
as long as “the service to one [master] does not involve
abandonment of the service to the other,” RESTATEMENT
(SECOND) OF AGENCY § 226, at 498, and “the act is within the
scope of his employment for both,” id. § 226 cmt. a, at 499. In
the comments to Section 226, the Restatement (Second)
specifically notes that the “right of the [putative] master[s] to
control the conduct of the servant” is determinative of whether
the servant has two masters at the same time. Id. § 226 cmt. a,
at 498 (emphasis added).
To be sure, Section 226 addresses situations in which
an individual is a “servant of two masters, not joint employers.”
RESTATEMENT (SECOND) OF AGENCY § 226, at 498 (emphasis
added). But if unexercised control is relevant to identifying
two distinct employers, that consideration logically applies to
identifying simultaneous joint employers as well. Indeed, the
Supreme Court has, in the context of the Federal Employers’
Liability Act, 45 U.S.C. § 51 et seq., identified the dual master
doctrine as a “common-law” “method[] by which [an
individual] can establish his ‘employment’ with [one entity]
even while he is nominally employed by another.” See Kelley
v. Southern Pac. Co., 419 U.S. 318, 324 (1974).
29
2
Browning-Ferris argues that the “most important”
component of the employee-or-independent-contractor inquiry
is the “extent of the actual supervision exercised.”
Browning-Ferris Br. 27 (emphases omitted) (quoting Aurora
Packing, 904 F.2d at 76). Considering the independent-
contractor inquiry to be “essentially the same” as the joint-
employer inquiry, id. 31, Browning-Ferris tells us that we
should import the same focus here. Both steps of that argument
fail.
a
For starters, the common law’s analysis of independent
contractor status, if anything, has long agreed that “the right of
control and not [merely] the exercise of that right * * * is
relevant” to establishing that a worker is an employee rather
than an independent contractor. Local 814, Int’l Bhd. of
Teamsters v. NLRB, 512 F.2d 564, 571 n.13 (D.C. Cir. 1975)
(emphasis added); see, e.g., Construction, Bldg. Material, Ice
& Coal Drivers, Helpers & Inside Employees Union, Local No.
221 v. NLRB, 899 F.2d 1238, 1242 (D.C. Cir. 1990) (R.B.
Ginsburg, J.) (“The right to control the ‘means and manner’ of
job performance * * * is * * * recurrent in the cases in point”
addressing employee versus independent-contractor status)
(emphasis added); Dovell v. Arundel Supply Corp., 361 F.2d
543, 544 (D.C. Cir. 1966) (“The decisive test in determining
whether the relation of master and servant exists is whether the
employer has the right to control and direct the servant in the
performance of his work and in the manner in which the work
is to be done. It will be noted from the above, it is not the
manner in which the alleged master actually exercised his
authority to control and direct the action of the servant which
controls, but it is his right to do so that is important.”); Grace
30
v. Magruder, 148 F.2d 679, 681 (D.C. Cir. 1945) (“The vital
element which negatives such independence, in the relation
between employer and employee, is the right to control the
employee, not only as to the final result, but in the performance
of the task itself. And, it is the right to control, not control or
supervision itself, which is most important.”); RESTATEMENT
(SECOND) OF AGENCY § 220 (1958) (defining an independent
contractor as “a person who contracts with another to do
something for him but who is not controlled by the other nor
subject to the other’s right to control with respect to his
physical conduct in the performance of the undertaking.”)
(emphasis added); cf. Logue v. United States, 412 U.S. 521, 527
(1973) (“[T]he modern common law as reflected in the
Restatement of Agency * * * make[s] the distinction between
the servant or agent relationship and that of independent
contractor turn on the absence of authority in the principal to
control the physical conduct of the contractor in performance
of the contract.”) (emphasis added).7
7
See also City Cab Co. of Orlando v. NLRB, 628 F.2d 261, 265–
266 (D.C. Cir. 1980) (“In this case, * * * the company effectively
retains control over the manner in which its [workers] perform their
duties. * * * [W]e think the record adequately supports the Board’s
finding that these [workers] were employees.”); Joint Council of
Teamsters No. 42 v. NLRB, 450 F.2d 1322, 1327 (D.C. Cir. 1971) (A
worker “may be deemed an employee, rather than an independent
contractor, if the principal explicitly or implicitly reserves the right
to supervise the details of his work.”); H.G. Wood, A Treatise on the
Law of Master and Servant (1877) (“The simple test is, who has the
general control over the work? Who has the right to direct what shall
be done, and how to do it? And if the person employed reserves this
power to himself, his relation to the employer is independent, and he
is a contractor; but if it is reserved to the employer or his agents,
relation is that of master and servant.”) (emphasis added).
31
Lastly, the parties and amici dispute the
appropriateness of relying on the Restatement (Second) of
Agency as a relevant source of common law. Some amici
argue that the Restatement (Second)’s primary focus is on
assigning liability for specific tortious conduct or breaches of
contracts, not on determining the relationship between a
putative employer and employee. Chamber of Commerce et
al. Br. 22–23. Nevertheless, the Supreme Court has repeatedly
relied on the Restatement (Second) to answer questions of
employment under the common law of agency. See, e.g.,
Community for Creative Non-Violence, 490 U.S. at 752 & n.31
(“In determining whether a hired party is an employee under
the general common law of agency, we have traditionally
looked for guidance to the Restatement [(Second)] of
Agency.”); Town & Country, 516 U.S. at 94–95; Darden, 503
U.S. at 324.
This court too has relied specifically on Section 220 of
the Restatement (Second) of Agency to determine whether a
worker is an employee or independent contractor under
traditional common-law principles in National Labor Relations
Act cases. E.g., FedEx, 849 F.3d at 1125; Lancaster Symphony
Orchestra v. NLRB, 822 F.3d 563, 565–566 (D.C. Cir. 2016);
North American Van Lines v. NLRB, 869 F.2d 596, 599–600
(D.C. Cir. 1989). Accordingly, controlling precedent makes
the Restatement (Second) of Agency a relevant source of
traditional common-law agency standards in the National
Labor Relations Act context.
In any event, both the first Restatement of Agency and
the Restatement (Third) of Agency also identify the “right to
control” as a relevant factor in establishing a master-servant or
employment relationship. RESTATEMENT OF AGENCY § 2(1)–
(2), at 11 (AM. LAW INST. 1933) (A “master” “controls or has
the right to control the physical conduct of the other in the
32
performance of [a] service,” while a “servant” “is controlled or
is subject to the right to control by the master[.]”); 2
RESTATEMENT (THIRD) OF AGENCY § 7.07(3)(a), at 198 (AM.
LAW INST. 2006) (“For purposes of this section, * * * an
employee is an agent whose principal controls or has the right
to control the manner and means of the agent’s performance of
work[.]”).
In sum, the Board’s conclusion that an employer’s
authorized or reserved right to control is relevant evidence of a
joint-employer relationship wholly accords with traditional
common-law principles of agency. And because the Board
relied on evidence that Browning-Ferris both had a “right to
control” and had “exercised that control,” Browning-Ferris,
362 N.L.R.B. No. 186, at 18, this case does not present the
question whether the reserved right to control, divorced from
any actual exercise of that authority, could alone establish a
joint-employer relationship.
b
Beyond all that, Browning-Ferris’s contention that the
joint-employer and independent-contractor tests are virtually
identical lacks any precedential grounding. Browning-Ferris
cites no case in which we have applied an employee-or-
independent-contractor test to resolve a question of joint
employment, and we have found none. Cf. Redd v. Summers,
232 F.3d 933, 938 (D.C. Cir. 2000) (noting in the Title VII
context that “[t]his court has never invoked” the independent-
contractor test “to resolve an issue of joint employment,” but
avoiding the issue).8
8
Al-Saffy v. Vilsack, 827 F.3d 85 (D.C. Cir. 2016), likewise
avoided whether the Title VII independent-contractor test was
33
That lack of precedent is understandable because, at
bottom, the independent-contractor and joint-employer tests
ask different questions. The independent-contractor test
considers who, if anyone, controls the worker other than the
worker herself. See Lancaster Symphony Orchestra, 822 F.3d
at 566. The joint-employer test, by contrast, asks how many
employers control individuals who are unquestionably
superintended.
In this case, there is no question that the workers
Leadpoint provides are employees of (at least) Leadpoint, not
independent contractors. See Browning-Ferris Br. 31 n.14 (“It
is undisputed that the persons in the petitioned-for bargaining
unit are employees, not independent contractors.”). Indeed,
there is nothing independent at all about those employees’
work lives.
In addition, an important aspect of the independent-
contractor inquiry is whether the workers in question are
operating their own independent businesses. See United
Insurance, 390 U.S. at 258–259 (listing whether workers
“operate their own independent businesses” as a “decisive
factor[]” in the employee-or-independent-contractor inquiry);
RESTATEMENT (SECOND) OF AGENCY § 220(2)(b), at 485
(listing “whether or not the [worker] is engaged in a distinct
occupation or business” as a factor in the employee-or-
independent-contractor inquiry). That consideration is of no
help to the joint-employer inquiry.
Similarly, under the Restatement (Second) of Agency,
several of the factors that guide the employee-or-independent-
identical to the joint-employer test, but noted that the two tests had
in common “the touchstone [of] control,” id. at 97.
 34
contractor determination are aimed at characterizing the nature
of the work performed. See, e.g., RESTATEMENT (SECOND) OF
AGENCY § 220(2)(c), at 485 (considering “the kind of
occupation, with reference to whether, in the locality, the work
is usually done under the direction of the employer or by a
specialist without supervision”); id. § 220(2)(d), at 485
(considering “the skill required in the particular occupation”).
Those factors shed no meaningful light on the question of
Browning-Ferris’s status here.
To be sure, as Browning-Ferris notes, both tests
ultimately probe the existence of a common-law
master-servant relationship.9 And central to establishing a
master-servant relationship—whether for purposes of the
independent-contractor inquiry or the joint-employer inquiry—
is the nature and extent of a putative master’s control.10
Accordingly, employee-or-independent-contractor cases can
still be instructive in the joint-employer inquiry to the extent
9
See RESTATEMENT (SECOND) OF AGENCY § 220 cmt. c, at
486–487 (explaining that the employee-or-independent-contractor
factors listed in Section 220(2) are all to be considered in
determining whether “[t]he relation of master and servant” exists);
Boire, 376 U.S. at 481 (equating “whether [the putative joint
employer] * * * possessed sufficient control over the work of the
employees to qualify as a joint employer” with “whether [the putative
joint employer] possessed sufficient indicia of control to be an
‘employer’”) (emphases added).
10
See RESTATEMENT (SECOND) OF AGENCY § 220(2)(a), at 485
(specifying “the extent of control which, by the agreement, the
master may exercise over the details of the work” as a factor in the
employee-or-independent-contractor determination); Boire, 376
U.S. at 481 (“[W]hether [a putative joint employer] * * * qualif[ies]
as a joint employer” depends on whether the putative joint employer
“possesse[s] sufficient control over the work of the employees[.]”).
35
that they elaborate on the nature and extent of control necessary
to establish a common-law employment relationship. Beyond
that, a rigid focus on independent-contractor analysis omits the
vital second step in joint-employer cases, which asks, once
control over the workers is found, who is exercising that
control, when, and how.
In short, using the independent-contractor test
exclusively to answer the joint-employer question would be
rather like using a hammer to drive in a screw: it only roughly
assists the task because the hammer is designed for a different
purpose.
c
The dissenting opinion is of the view that Leadpoint’s
purported status as an independent contractor per se resolves
the issue before us, reasoning that employees of an independent
contractor cannot be employees of the company that hired the
contractor. See Dissent Op. 9. Controlling precedent says
otherwise.
In Boire v. Greyhound Corp., the only Supreme Court
case to address the question of joint employer status, the Court
was explicit that the joint employer inquiry is “unaffected by
any possible determination” that one employer is an
independent contractor of another employer. 376 U.S. at 481
(emphasis added); id. (“Greyhound has never suggested that
the employees [of the independent contractor] themselves
occupy an independent contractor status.”).
This court’s precedent is of the same view. In Herbert
Harvey v. NLRB, the World Bank hired Herbert Harvey Inc.—
an independent contractor providing building repair services.
385 F.2d at 684–685; see Herbert Harvey, Inc. v. NLRB, 424
36
F.2d 770, 775 (D.C. Cir. 1969) (noting that it was “plain” to
the Board that the World Bank and Herbert Harvey contracted
for “a completely independent relationship”). We nevertheless
held that, as to Herbert Harvey’s employees, the “record clearly
shows a basis for finding that Harvey and the Bank are joint
employers[.]” Id.; see also International Chem. Workers Union
Local 483 v. NLRB, 561 F.2d 253, 256 (D.C. Cir. 1977)
(explaining that an employer’ status as an independent
contractor is “not determinative” of the other putative
employer’s control over the employees at issue).
The dissenting opinion dismisses Boire as a decision
about “jurisdiction.” Dissenting Op. 12 n.3. True. But in
resolving the question of jurisdiction in Boire, the Supreme
Court was explicit that the statutory carve-out from the
National Labor Relations Act for independent contractors—
and, importantly, a related jurisdictional exception—did not
apply because the Board’s jurisdiction was “unaffected” by
Floors’ independent-contractor status. Boire, 376 U.S. at 481.
The Supreme Court’s analysis of why the independent
contractor’s status did not solve Greyhound’s jurisdictional
problem, accordingly, was necessary to the decision. “When
an opinion issues for the [Supreme] Court, it is not only the
result but also those portions of the opinion necessary to that
result by which we are bound.” Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 67 (1996).
So we take the Supreme Court at its word, as did the
Fifth Circuit on remand in Boire, NLRB v. Greyhound Corp.,
368 F.2d 778, 780–781 (5th Cir. 1966) (applying the Supreme
Court’s standard to hold that Greyhound and the independent
contractor were joint employers), and the Third Circuit in its
watershed joint-employer decision, Browning-Ferris, 691 F.2d
at 1122–1123. See also id. at 1123 (noting that, under Boire,
Greyhound’s status as a joint employer “is unaffected by any
37
possible determination as to Floors’ status as an independent
contractor”) (quoting Boire, 376 U.S. at 481).
Lastly, the dissenting opinion cites to the 1925 edition
of Corpus Juris for the proposition that:
An independent contractor is not the servant of
his employer. The relation of master and
servant does not exist between an employer and
the servants of an independent contractor, nor
between an independent contractor and the
servant of a subcontractor, and he is not
responsible as a master, either to or for them.
Dissenting Op. 10–11 (quoting 39 C.J. Master and Servant § 8,
at 37–38 (1925)) (emphasis omitted).
As between Supreme Court precedent and Corpus
Juris, we hew to the former. But as it turns out, we need not
make that choice here because the cited passage does not stop
where the dissenting opinion does. Corpus Juris adds in the
very next sentence:
If, however, the employer retains or assumes
control over the means and method by which
the work of a contractor is to be done, the
relation of master and servant exists between
him and servants of such a contractor, and the
mere fact of nominal employment by an
independent contractor will not relieve the
master of liability where the servant is in fact
in his employ.
39 C.J. Master and Servant § 8, at 38 (emphasis added).
38
B
The Board also ruled that an employer’s control need
not “be exercised directly and immediately” “to be relevant to
the joint-employer inquiry”; indicia of “indirect[]” control can
also be considered. Browning-Ferris, 362 N.L.R.B. No. 186,
at 2. The Board again correctly discerned the content of the
common law—indirect control can be a relevant factor in the
joint-employer inquiry. But in failing to distinguish evidence
of indirect control that bears on workers’ essential terms and
conditions from evidence that simply documents the routine
parameters of company-to-company contracting, the Board
overshot the common-law mark.
1
a
Traditional common-law principles of agency do not
require that “control * * * be exercised directly and
immediately” to be “relevant to the joint-employer inquiry.”
Browning-Ferris, 362 N.L.R.B. No. 186, at 2 (emphasis
added). In fact, the National Labor Relations Act itself
expressly recognizes that agents acting “indirectly” on behalf
of an employer could also count as employers. 29 U.S.C.
§ 152(2) (the term “employer” “includes any person acting as
an agent of an employer, directly or indirectly”). The Act thus
textually indicates that the statute looks at all probative indicia
of employer status, whether exercised “directly or indirectly.”
Id.
Browning-Ferris’s proposed rigid distinction between
direct and indirect control has no anchor in the common law.
Neither Browning-Ferris nor the dissenting opinion cites any
case holding that consideration of indirect control is forbidden.
39
Nor have we found any. To the contrary, common-law
decisions have repeatedly recognized that indirect control over
matters commonly determined by an employer can, at a
minimum, be weighed in determining one’s status as an
employer or joint employer, especially insofar as indirect
control means control exercised “through an intermediary,” id.
To begin with, courts applying the traditional common
law of agency have explicitly considered indirect control as
relevant to the existence of a master-servant relationship. See
White v. Morris, 152 S.E.2d 417, 419 (Ga. Ct. App. 1966)
(“[E]vidence and inferences therefrom indicating [a putative
employer’s] indirect control * * * are relevant for
consideration” of “the existence of a master-servant
relationship,” “because the alleged relationship can exist by
virtue of indirect control of the servant’s performance as well
as by direct control.”); Wallowa Valley Stages, Inc. v.
Oregonian Pub. Co., 386 P.2d 430, 433 (Or. 1963) (en banc)
(finding sufficient evidence “that the [putative master]
indirectly exercised some control over the detail of [the
putative servant’s] operations”), repudiated on other grounds
by Woody v. Waibel, 554 P.2d 492 (Or. 1976) (en banc).11
In particular, the common law has never countenanced
the use of intermediaries or controlled third parties to avoid the
creation of a master-servant relationship. See, e.g., Nicholson
v. Atchison, T. & S. F. Ry. Co., 147 P. 1123, 1126 (Kan. 1915)
(putative master’s use of “branch company” as a “mere
11
See also Metzinger v. New Orleans Bd. of Trade, 44 So. 1007,
1007 (La. 1907) (looking to whether the putative employer exercised
“control over [plaintiff], either directly or indirectly”); City of
Wichita Falls v. Travelers Ins. Co., 137 S.W.2d 170, 173 (Tex. Civ.
App. 1940) (looking to whether the employer exercised “control,
directly or indirectly, over the worker”) (citation omitted).
40
instrumentality” “did not break the relation of master and
servant existing between the plaintiff and the [putative
master]”); 39 C.J. Master and Servant § 8, at 38 (“Where an
independent contractor is created or is operating as a
subterfuge, an employee will be regarded as the servant of the
principal employer.”).
Our cases too have considered indirect control relevant
to employer status. See, e.g., Dunkin’ Donuts, 363 F.3d at 440
(in addition to direct control, joint employer’s warehouse
supervisor “reported his opinion about [warehouse applicants’]
qualifications, which [contractor] generally followed,” and
joint employer’s transportation manager “prevented hiring of
[driver] applicants he did not approve”); Al-Saffy v. Vilsack,
827 F.3d 85, 97 (D.C. Cir. 2016) (in Title VII context, this court
cited as relevant evidence supporting reversal of summary
judgment the fact that officials working for putative employer
had recommended plaintiff’s dismissal).
In addition, control that is exercised through an
intermediary is a defining feature of the subservant doctrine.12
12
See, e.g., RESTATEMENT (SECOND) OF AGENCY § 5, illus. 6,
at 25–26 (A subservant relationship may exist where “P employs
miners with the agreement that [the miners] are to employ, pay and
control the activities of assistants who, nevertheless, are within the
general discipline of the mine and can be discharged at any time for
misconduct.”); id. § 5, illus. 7, at 26 (A subservant relationship may
exist where “P operates a series of markets, putting each in charge of
a manager who in practice is given full control over selling. Each
manager is paid a net commission on the net profits and is allowed
to hire whom he will, the store being subject, however, to general
supervision by P.”); Southern Exp. Co. v. Brown, 7 So. 318, 319
(Miss. 1890) (“The fact that there is an intermediate party, in whose
general employment the person, whose acts are in question, is
41
Much as the joint-employer inquiry arises in situations in
which an employee has multiple masters at the same time, the
subservant doctrine analogously governs arrangements in
which an employee has, as simultaneous masters, both “his
immediate employer and [his immediate employer’s] master.”
RESTATEMENT (SECOND) OF AGENCY § 226 cmt. a, at 499.
Given the central role that indirect control plays in the
subservant doctrine, there is no sound reason that the related
joint-employer inquiry would give that factor a cold shoulder.
Even the now-vacated Board decision in Hy-Brand
acknowledged that indirect control can be relevant to the joint
employer question. Hy-Brand, 365 N.L.R.B. No. 156, at 4
(“Our fundamental disagreement with the Browning-Ferris test
is not that it treats indicia of indirect, and even potential, control
to be probative of joint-employer status, but that it makes such
indicia potentially dispositive without any evidence of direct
control in even a single area.”). There is thus broad agreement
that the common law factors indirect control into the analysis
of employer status.
Accordingly, the Board’s conclusion that it need not
avert its eyes from indicia of indirect control—including
control that is filtered through an intermediary—is consonant
with established common law. And that is the only question
before this court. Hy-Brand’s concern about whether indirect
control can be “dispositive” is not at issue in this case because
the Board’s decision turned on its finding that Browning-Ferris
exercised control “both directly and indirectly.” Browning-
engaged, [generally] does not prevent the principal from being held
liable for the negligent conduct of his subagent or under-servant[.]”).
b
42
Ferris, 362 N.L.R.B. No. 186, at 18; see also id. at 19 (“We
find that all of these forms of control—both direct and
indirect—are indicative of an employer-employee
relationship.”).
Browning-Ferris’s argument that the common law of
agency closes its mind to evidence of indirect control is
unsupported by law or logic. First, Browning-Ferris points to
a passage in the comments to Section 220 of the RESTATEMENT
(SECOND), which distinguishes employees from independent
contractors, and argues that the relevant factors do “not look[]
to indirect control.” Browning-Ferris Br. 24 (quoting
Browning-Ferris, 362 N.L.R.B. No. 186, at 29 (Members
Miscimarra & Johnson, dissenting)). In fact, the comments say
nothing one way or the other about direct versus indirect
control. All they demonstrate is the entirely uncontroversial
proposition that the stronger the indicia of control, the clearer
the indication of employee rather than independent-contractor
status. See, e.g., RESTATEMENT (SECOND) OF AGENCY § 220
cmt. j, at 490 (short period of employment makes worker “less
apt” to be subject to sufficient control and “more likely” to be
considered an independent contractor); id. § 220 cmt. k, at 490
(“fact that a worker supplies his own tools is some evidence
that he is not a servant”) (emphasis added). And, once again,
Browning-Ferris’s exclusive focus on the independent-
contractor test ill fits the joint-employer inquiry into who is
pulling the strings when it comes to managing and supervising
workers who are admittedly employees.
Second, Browning-Ferris points to our decision in
Local 777, Democratic Union Organizing Committee,
Seafarers International Union of North America v. NLRB, 603
F.2d 862 (D.C. Cir. 1978), which contrasted “economic
controls” that are insufficient to establish a common-law
employment relationship with “the more usual forms of direct
43
control typical of an employer/employee relationship,” id. at
873. See Browning-Ferris Br. 29. But that statement indicates
only that “direct control” is “typical[ly]” or “usual[ly]” present
in employment relationships. It does not hold either that
indirect control is categorically excluded from the matrix of
relevant factors, or that direct control of all the essential terms
and conditions of employment is the sine qua non of employer
status under the traditional common-law principles of agency.13
13
The dissenting members of the Board also highlighted several
“recent[]” decisions in other courts as evidence that the common law
requires direct-and-immediate control. See Browning-Ferris, 362
N.L.R.B. No. 186, at 30–31, 34–35 (Members Miscimarra &
Johnson, dissenting). Browning-Ferris, however, does not cite those
decisions at all. For good reason. Browning-Ferris maintains that
the common-law joint-employer standard is “frozen in time” with the
traditional common-law principles of agency. Oral Arg. Tr. 4:20–
21; cf. Field, 516 U.S. at 70 (looking to the common law at the time
of a statute’s enactment to inform the established common-law
meaning of a statutory term). In any event, not one of those cases
holds that indirect control is a forbidden factor in the employer
analysis. Nor is Browning-Ferris helped by Gulino v. New York State
Education Department, 460 F.3d 361 (2d Cir. 2006). In that case,
the Second Circuit read the Supreme Court’s decision in Reid to
require control that is “direct, obvious, and concrete,” not “merely
indirect or abstract,” id. at 379. But Reid does not stand for the
principle that the consideration of indirect control is inconsistent
with the common law of agency. Reid says nothing about whether
control must be “direct.” In fact, in its “non-exhaustive” list of
relevant factors, the Supreme Court includes “the extent of the hired
party’s discretion over when and how long” the agents work and “the
hired party’s role in hiring and paying” the agents—both of which
not uncommonly take indirect forms. 490 U.S. at 751–752. Reid,
like the common law, focuses on the extent of control, not on the
mechanism for its exercise. Jane Doe v. Wal-Mart Stores, Inc., 572
F.3d 677 (9th Cir. 2009), likewise speaks only to the need for
44
We should also hesitate to find the common law at war
with common sense. A categorical rule against even
considering indirect control—no matter how extensively the
would-be employer exercises determinative or heavily
influential pressure and control over all of a worker’s working
conditions—would allow manipulated form to flout reality. If,
for example, a company entered into a contract with Leadpoint
under which that company made all of the decisions about work
and working conditions, day in and day out, with Leadpoint
supervisors reduced to ferrying orders from the company’s
supervisors to the workers, the Board could sensibly conclude
that the company is a joint employer. This is especially so if
that company retains the authority to step in and exercise direct
authority any time the company’s indirect mandates are not
followed. After all, as Justice Scalia commented, “the soul of
the law * * * is logic and reason.” Hein v. Freedom from
Religion Found., Inc., 551 U.S. 587, 633 (2007) (Scalia, J.,
concurring in the judgment); cf. United States v. Bradley, 35
U.S. (10 Pet.) 343, 364 (1836) (applying rule because “[t]his is
not only the dictate of the common law, but of common
sense”).
2
The problem with the Board’s decision is not its
recognition that indirect control (and certainly control
exercised through an intermediary) can be a relevant
consideration in the joint-employer analysis. It is the Board’s
failure when applying that factor in this case to hew to the
relevant common-law boundaries that prevent the Board from
“immediate” control over “day-to-day” activities, id. at 683. It says
nothing about whether that control can be exercised through an
intermediary.
45
trenching on the common and routine decisions that employers
make when hiring third-party contractors and defining the
terms of those contracts. To inform the joint-employer
analysis, the relevant forms of indirect control must be those
that “share or co-determine those matters governing essential
terms and conditions of employment.” Dunkin’ Donuts, 363
F.3d at 440 (citation omitted); see also Browning-Ferris, 691
F.2d at 1123; Laerco, 269 N.L.R.B. at 325. By contrast, those
types of employer decisions that set the objectives, basic
ground rules, and expectations for a third-party contractor cast
no meaningful light on joint-employer status.
The Board’s analysis of the factual record in this case
failed to differentiate between those aspects of indirect control
relevant to status as an employer, and those quotidian aspects
of common-law third-party contract relationships. For
example, the Board treated as equally relevant to employer
status (i) evidence that Browning-Ferris supervisors
“communicated detailed work directions to employees on the
stream,” which may well have dictated a term or condition of
employment, and (ii) Browning-Ferris’s and Leadpoint’s use
of a “cost-plus contract,” a frequent feature of third-party
contracting and sub-contracting relationships. See Browning-
Ferris, 362 N.L.R.B. No. 186, at 18–20.
In addition, the Board provided no blueprint for what
counts as “indirect” control. At some points, the Board
indicated that indirect control means control that is conveyed
“through an intermediary.” Browning-Ferris, 362 N.L.R.B.
No. 186, at 2. Such use of an intermediary either to transmit
Browning-Ferris directions to a Leadpoint sorter, see Oral Arg.
Tr. 39, 41–42, or to implement Browning-Ferris-influenced
disciplinary measures, J.A. 32, may well be found to implicate
the essential terms and conditions of work. On the other hand,
routine contractual terms, such as a very generalized cap on
46
contract costs, or an advance description of the tasks to be
performed under the contract, would seem far too close to the
routine aspects of company-to-company contracting to carry
weight in the joint-employer analysis. Cf. NLRB v. Denver
Bldg. & Const. Trades Council, 341 U.S. 675, 689–690 (1951)
(“[T]hat the contractor had some supervision over the
subcontractor’s work, did not eliminate the status of each as an
independent contractor or make the employees of one the
employees of the other.”).
The Board’s employment of the indirect-control factor,
in other words, requires it to erect some legal scaffolding that
keeps the inquiry within traditional common-law bounds and
recognizes that “[s]ome such supervision is inherent in any
joint undertaking, and does not make the contributing
contractors employees.” Radio City Music Hall Corp. v.
United States, 135 F.2d 715, 718 (2d Cir. 1943) (L. Hand, J.).
After all, “global oversight” is a routine feature of independent
contracts. See North American Van Lines, 869 F.2d at 599
(“[G]lobal oversight * * * is fully compatible with the
relationship between a company and an independent
contractor.”).14 Wielding direct and indirect control over the
“essential terms and conditions” of employees’ work lives is
not. Dunkin’ Donuts, 363 F.3d at 440 (citation omitted). The
Board’s decision obscures that line.
The Board’s assurance that “‘influence’ is not
enough * * * if it does not amount to control” misses the point
that not every aspect of control counts. Browning-Ferris, 362
N.L.R.B. No. 186, at 13 n.68. The critical question is what is
14
See also Standard Oil Co. v. Anderson, 212 U.S. 215, 226
(1909) (finding that mere “co-operation and co-ordination,” without
more, are insufficient to establish a master-servant relationship
between a principal and the servants of an independent contractor).
47
being controlled. Whether Browning-Ferris influences or
controls the basic contours of a contracted-for service—such as
requiring four lines’ worth of sorters plus supporting screen
cleaners and housekeepers—would not count under the
common law.
Counsel for the Board assured the court at oral
argument that the Board will determine the boundaries of the
indirect-control element as it proceeds, on a case-by-case basis.
See Oral Arg. Tr. 61–62. In principle, there is nothing wrong
with the Board fleshing out the operation of a legal test that
Congress has delegated to the Board to administer through
case-by-case adjudication. See Eastex, Inc. v. NLRB, 437 U.S.
556, 574–575 (1978) (“[T]he ‘nature of the problem, as
revealed by unfolding variant situations,’ requires ‘an
evolutionary process for its rational response, not a quick,
definitive formula as a comprehensive answer.’”) (quoting
Local 761, Int’l Union of Electric, Radio & Machine Workers
v. NLRB, 366 U.S. 667, 674 (1961)).
But the Board’s decision here is one of those cases—
the one in which the Board first applied that indirect-control
factor, and did so at times in a manner that appears to have
pushed beyond the common-law’s bounds. Because the Board
has no administrative expertise when it comes to discerning the
traditional common-law meaning of “employer,” see United
Insurance, 390 U.S. at 260, that step-by-step approach depends
on the Board starting with a correct articulation of the
governing common-law test. Here, that legal standard is the
common-law principle that a joint employer’s control—
whether direct or indirect, exercised or reserved—must bear on
the “essential terms and conditions of employment,” Dunkin’
Donuts, 363 F.3d at 440 (citation omitted), and not on the
routine components of a company-to-company contract.
48
Because we cannot tell from this record what facts
proved dispositive in the Board’s determination that Browning-
Ferris is a joint employer, and we are concerned that some of
them veered beyond the orbit of the common law, we remand
for further proceedings consistent with this opinion.15
C
There is a second half to the Board’s new test that bears
mention. The Board held that, even if it finds that the common
law would deem a business to be a joint employer, the Board
will also ask “whether the putative joint employer possesses
sufficient control over employees’ essential terms and
conditions of employment to permit meaningful collective
bargaining” before finding joint-employer status under the Act.
See Browning-Ferris, 362 N.L.R.B. No. 186, at 2. “In other
words,” according to the Board, “the existence of a
common-law employment relationship is necessary, but not
sufficient, to find joint-employer status [under the Act].” Id. at
12.
The Board, however, did not meaningfully apply the
second step of its test here. In concluding that Browning-Ferris
and Leadpoint were joint employers of the workers in the
petitioned-for unit, the Board simply noted that
Browning-Ferris’s collective-bargaining obligation applies
“only with respect to those terms and conditions over which it
possesses sufficient control for bargaining to be meaningful.”
Browning-Ferris, 362 N.L.R.B. No. 186, at 2 n.7. But the
15
Because this case decides only whether indirect control can be a
relevant factor in identifying a joint employer and because such
indirect control also must pertain to the essential terms and
conditions of the workers’ employment, the dissenting opinion’s
concern (at 10 n.8) about lawn service companies falls wide of the
mark.
49
Board never delineated what terms and conditions are
“essential” to make collective bargaining “meaningful,” id. at
2, instead declaring that it would adhere to an “inclusive” and
“non-exhaustive” approach to the meaning of “essential terms
and conditions of employment,” id. at 15. Nor did the Board
clarify what “meaningful collective bargaining” might require
in an arrangement like this.
We trust that, if the Board were again to find that
Browning-Ferris is a joint employer of the Leadpoint workers
under the common law, it would not neglect to (i) apply the
second half of its announced test, (ii) explain which terms and
conditions are “essential” to permit “meaningful collective
bargaining,” and (iii) clarify what “meaningful collective
bargaining” entails and how it works in this setting.
V
In this case the Board both refined its joint-employer
standard and immediately applied it retroactively to conclude
that Browning-Ferris and Leadpoint were joint employers of
the workers in the petitioned-for unit. Browning-Ferris
challenges that retroactive application as manifestly unjust.
Because we conclude that the Board insufficiently explained
the scope of the indirect-control element’s operation and how
a properly limited test would apply in this case, it would be
premature for us to decide Browning-Ferris’s challenge to the
Board’s retroactive application of its test. We do not know
whether, under a properly articulated and cabined test of
indirect control, Browning-Ferris will still be found to be a
joint employer. In addition, the lawfulness of the retroactive
application of a new decision cannot be evaluated reliably
without knowing with more precision what that new test is and
how far it departs (or does not) from reasonable, settled
expectations.
50
Nevertheless, we note that the Board in this case
“carefully examined three decades of its precedents,”
“concluded that the joint-employer standard they reflected
required ‘direct and immediate’ control,” and
“[t]hereafter * * * forthrightly overruled those cases and set
forth * * * ‘a new rule.’” CNN America, 865 F.3d at 749–750
(quoting Browning-Ferris, 362 N.L.R.B. No. 186, at 3). In
rearticulating its joint-employer test on remand, then, the Board
should keep in mind that while retroactive application may be
“appropriate for new applications of [existing] law,” it may be
unwarranted or unjust “when there is a substitution of new law
for old law that was reasonably clear,” and on which employers
may have relied in organizing their business relationships.
Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1102
(D.C. Cir. 2001) (alteration in original; internal quotation
marks omitted) (quoting Public Serv. Co. of Colo. v. FERC, 91
F.3d 1478, 1488 (D.C. Cir. 1996)); cf. American Tel. & Tel.
Co. v. FCC, 454 F.3d 329, 333–334 (D.C. Cir. 2016) (finding
retroactive application “not manifestly unjust” where the
agency’s previous rulings “reflect[ed] a highly fact-specific,
case-by-case style of adjudication” that did not establish “a
clear rule of law exempting” certain conduct).
*****
In sum, we uphold as fully consistent with the common
law the Board’s determination that both reserved authority to
control and indirect control can be relevant factors in the joint-
employer analysis. We reverse, however, the Board’s
articulation and application of the indirect-control element in
this case to the extent that it failed to distinguish between
indirect control that the common law of agency considers
intrinsic to ordinary third-party contracting relationships, and
indirect control over the essential terms and conditions of
51
employment. We accordingly grant Browning-Ferris’s petition
in part, deny the Board’s cross-application, dismiss without
prejudice the Board’s application for enforcement as to
Leadpoint, and remand for further proceedings consistent with
this opinion.
So ordered.
RANDOLPH, Senior Circuit Judge, dissenting:
This case presents the question whether, under the National
Labor Relations Act, Browning-Ferris is the joint employer of
Leadpoint’s employees. While the case was pending before our
court, the Board’s Chairman announced that the Board will
conduct a rulemaking to establish standards for determining
joint employer status. The Board then published its Notice of
Proposed Rulemaking. The Standard for Determining Joint-
Employer Status, 83 Fed. Reg. 46,681 (Sept. 14, 2018).
In response to the Chairman’s announcement, Browning-
Ferris moved to remand the case to the Board pending the
outcome of the rulemaking. I voted to grant the motion. My
colleagues denied it and now release their opinion on the
questions the Board is considering in its rulemaking.
I dissent because the majority should not have issued any
merits opinion in light of the pending rulemaking proceedings.
I dissent as well because the majority opinion misstates the
common law, misframes the questions in the case, and adds to
the uncertainty the Board’s Browning-Ferris decision has
generated.
I.
The unusual twists and turns in this case need to be
recounted in order to appreciate where matters now stand.
In 2015 the Board, with a full complement of 5 Members,
issued its 3 to 2 “representation” decision that Leadpoint and
Browning-Ferris jointly employed Leadpoint’s employees at the
Browning-Ferris facility in California, and thus constituted a
single bargaining unit. Browning-Ferris Indus. of Cal., 362
N.L.R.B. No. 186 (Aug. 27, 2015).
2
This intermediate Board decision overturned decades of
settled law. Direct and immediate control of employees, not just
indirect control or potential control, had been required before a
company could be deemed a joint employer of another
company’s employees for the purposes of collective bargaining.
See, e.g., Int’l Chem. Workers Union Local 483 v. NLRB, 561
F.2d 253, 255–57 (D.C. Cir. 1977); AM Prop. Holding Corp.,
350 N.L.R.B. 998, 999–1002 (2007), enforced in relevant part
sub nom. Serv. Emps. Int’l Union, Local 32BJ v. NLRB, 647
F.3d 435, 442–45 (2d Cir. 2011); Airborne Freight Co., 338
N.L.R.B. 597, 597 n.1 (2002); TLI, Inc., 271 N.L.R.B. 798,
798–99 (1984), aff’d sub nom. Gen. Teamsters Local Union No.
326 v. NLRB, 772 F.2d 894 (3d Cir. 1985) (unpublished table
mem.); Laerco Transp. & Warehouse, 269 N.L.R.B. 324,
325–26 (1984).
The implications of the Board’s decision were profound and
attracted much attention. Statements in its 3-2 opinion affected
countless business relationships across the country and,
according to a Committee of the House of Representatives, did
so almost always in a negative way. See H.R. Rep. No. 115-
379, at 9–17 (2017); see also Browning-Ferris, 362 N.L.R.B.
No. 186, at 35–47 (dissenting op. of Members Miscimarra &
Johnson). The House Committee held hearings and reported a
bill that would overrule the Board’s decision and restore the
joint employer test the Board had been following for decades.
The bill passed the House, but at the time of this writing the
Senate had not acted. Save Local Business Act, H.R. 3441,
115th Cong. (as passed by House, July 11, 2017).
In the meantime, the Board in this case ordered an election
to implement its representation decision. At the time,
Browning-Ferris had 60 employees at the California facility who
were represented by a union. That union sought to represent the
collective BFI and Leadpoint employees under a single
3
bargaining unit. In the Board-ordered election, the employees
of the combined bargaining unit voted in favor of the union
representing them in joint bargaining with Browning-Ferris and
Leadpoint. When Browning-Ferris refused to come to the table,
the Board issued a bargaining order. Browning-Ferris Indus. of
Cal., 363 N.L.R.B. No. 95 (Jan. 12, 2016). Browning-Ferris
responded with its petition for judicial review in this court, and
the Board cross-petitioned for enforcement.
We heard oral argument in March of 2017. Thereafter the
composition of the Board changed. In December 2017, in
another 3 to 2 decision, the Board overruled its decision in this
case. Hy-Brand Indus. Contractors, Ltd., 365 N.L.R.B. No. 156
(Dec. 14, 2017). At the urging of the Board’s General Counsel,
we sent the case back to the Board for reconsideration in light of
Hy-Brand.
Then in February 2018 still another reconstituted Board
vacated Hy-Brand on the ground that one Member of the three-
Member majority should not have participated in the case. Hy-
Brand Indus. Contractors, Ltd., 366 N.L.R.B. No. 26 (Feb. 26,
2018). Hy-Brand thus reverted to a 2 to 2 tie about whether
Browning-Ferris should be overruled.
Several months later, the newly-appointed Board Chairman
announced that a majority of the Board’s Members had decided
that “notice-and-comment rulemaking offers the best vehicle to
fully consider all views on what the [joint-employer] standard
ought to be.” Letter from Chairman John F. Ring, NLRB, to
Sens. Elizabeth Warren, Kirsten Gillibrand & Bernard Sanders
1 (June 5, 2018) (alteration in original).
In the meantime we had restored to our docket the
Browning-Ferris petition for judicial review and the Board’s
cross-petition for enforcement.
4
The Board published its notice of proposed rulemaking on
September 14, 2018. The Standard for Determining Joint-
Employer Status, 83 Fed. Reg. 46,681.
II.
Apparently the majority objects to Browning-Ferris’s
remand request on the ground that any final Board rule would be
prospective only.1 Maj. Op. 17. The thinking must be – why
remand the case if the Board’s final rule would not change the
outcome? That idea is incorrect. There are at least three ways
in which the rulemaking could have a significant impact on this
case even though the Board’s rule will not be retroactive.
First, notice and comment rulemaking can be educational.
In the rulemaking on the joint employer question the Board
expects many comments. Letter from Chairman John F. Ring 1.
One of the advantages of rulemaking over adjudication is this:
“Agencies discover [through rulemaking] that they are not
always repositories of ultimate wisdom; they learn from the
suggestions of outsiders and often benefit from that advice.”
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 777–78 (1969)
(Douglas, J., dissenting).2
1
Remanding pending completion of the rulemaking would, of
course, entail delay. But a final resolution of this case has already
been delayed, and the majority’s decision sending the case back to the
Board for different reasons delays matters even further.
2
[E]very law which extends its influence to great
numbers in various relations and circumstances, must
produce some consequences that were never foreseen or
intended, and is to be censured or applauded as the general
advantages or inconveniences are found to preponderate.
5
On a remand from our court without a merits opinion, the
Board could take into account what it learned from the
rulemaking, even though it would not directly apply its “new”
rule to Browning-Ferris. A thorough historical analysis, for
example, might show – contrary to the Board’s opinion here –
that under the common law indirect control and potential control
were never enough to establish joint-employer status. If the case
reached us again, either on the company’s or the union’s
petition, the Board’s revised judgment could have the “power to
persuade” even though on our de novo review it lacked “the
power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944).
Second, assume that in the rulemaking the Board retains the
joint-employer standard it set forth in this case. Even so a
question remains. Should the new standard be applied to
Browning-Ferris? In the decision now on review the Board
rejected the argument of Browning-Ferris that its new joint-
employer standard should not be applied retroactively. 362
N.L.R.B. No. 186, at 1–2. On remand and in light of what the
Board learned during the rulemaking, the Board might
XIII The Works of Samuel Johnson 308 (1811) (House of Commons,
Mar. 10, 1740: comment of Robert Walpole).
Judge Friendly, in Watchman, What of the Night?, BENCHMARKS
147 (1967), believed that one of the best statements of the advantages
of rulemaking over adjudication, particularly when (as here) the
agency is changing settled expectations, is the Federal Trade
Commission’s statement in Unfair or Deceptive Advertising and
Labeling of Cigarettes in Relation to the Health Hazards of Smoking,
29 Fed. Reg. 8324, 8365–69 (July 2, 1964). See also Aaron L.
Nielson, Sticky Regulations, 85 U. Chi. L. Rev. 85 (2018).
6
reconsider that aspect of its decision. Case law in this circuit,
set forth in the margin, strongly suggests that it should.3
The third reason is the most significant and the most
probable. Suppose the final rule flatly disagrees with the
Board’s Browning-Ferris decision and reinstates the standard
that had prevailed for decades.4 That is what the Board’s Notice
of Proposed Rulemaking suggests. The proposed rule is set
forth in the margin.5
3
“Even though adjudication is by its nature retroactive, we have
recognized that ‘deny[ing] retroactive effect to a rule announced in an
agency adjudication’ may be proper where the adjudication
‘substitut[es] . . . new law for old law that was reasonably clear’ and
where doing so is ‘necessary . . . to protect the settled expectations of
those who had relied on the preexisting rule.’” See, e.g., Catholic
Health Initiatives Iowa Corp. v. Sebelius, 718 F.3d 914, 922 (D.C. Cir.
2013) (alterations in original) (quoting Williams Nat. Gas Co. v.
FERC, 3 F.3d 1544, 1554 (D.C. Cir. 1993)).
4
The bill that passed the House of Representatives does just that.
See H.R. 3441.
5
§ 103.40 Joint Employers. An employer, as defined
by Section 2(2) of the National Labor Relations Act (the
Act), may be considered a joint employer of a separate
employer’s employees only if the two employers share or
codetermine the employees’ essential terms and conditions
of employment, such as hiring, firing, discipline,
supervision, and direction. A putative joint employer must
possess and actually exercise substantial direct and
immediate control over the employees’ essential terms and
7
Browning-Ferris moved to remand the case to the Board
pending the outcome of the rulemaking. The Board’s Deputy
Associate General Counsel6 opposed the motion on the basis that
the rulemaking “would not affect this case.” That argument was
mistaken. Board counsel so confessed in oral argument on the
motion. Oral Arg. Tr. 15:9–16:8 (July 3, 2018).
The argument was mistaken for two reasons already
mentioned. It was mistaken as well because the Board’s
application of its proposed rule to Browning-Ferris would not
amount to retroactive law giving. Applying the Board’s new
rule would be reinstating the legal regime existing before the
Board’s decision in this case discarded it. The upshot is that if
the Board applied its proposed “new” rule – actually the old rule
– to Browning-Ferris on remand the Board would not be
impermissibly attaching “new legal consequences to events
completed before [the rule’s] enactment.” Landgraf v. USI Film
Prods., 511 U.S. 244, 269–70 (1994). Our decision in Catholic
Health Initiatives is on point. We held that a rulemaking
applying a rule codifying a policy announced in an earlier
adjudication did not violate the rule against retroactive
rulemaking. 718 F.3d at 920–22.
Like other administrative agencies, the Board may establish
standards through rulemaking or adjudication. See 29 U.S.C.
§ 156. Here, after the back and forth recounted above, the Board
has determined that the standards for joint employer status
conditions of employment in a manner that is not limited
and routine.
The Standard for Determining Joint-Employer Status, 83 Fed. Reg. at
46,696–97.
6
See infra note 9.
8
should be established through rulemaking. See The Standard for
Determining Joint-Employer Status, 83 Fed. Reg. at 46,686.
Bell Aerospace requires federal courts to respect the Board’s
determination to proceed by rulemaking. NLRB v. Bell
Aerospace Co., 416 U.S. 267, 294–95 (1974). Yet the majority
opinion – without any reasonable explanation – threatens to
short-circuit the Board’s choice, to control and confine the scope
of its rulemaking, and to influence the outcome of that
proceeding.7
The majority’s opinion potentially has this effect because it
is rendered de novo, a standard of review the Board may not
have anticipated. Board Br. 16. On de novo review it is the
court, not the Board, who decides what will be the test for joint
employer status. De novo review or not, our court should not be
attempting to preempt the Board’s forthcoming judgment in the
rulemaking proceeding. The Board is not “the repository of
ultimate wisdom,” and neither are the judges of this court.
7
Judicial review of a substantive Board rule begins in federal
district court. The district court in this circuit may be an optional
venue in such a case; it does not have exclusive jurisdiction. The
district courts in the other numbered circuits also have jurisdiction to
review Board rules. For example, judicial proceedings contesting the
Board rule in American Hospital Ass’n v. NLRB began in the United
States District Court for the Northern District of Illinois. 499 U.S. 606
(1991).
If the challenge to the final Board rule here were brought in a
district court in another circuit, that district court would have no
obligation to follow the majority opinion in this case. For this reason
the Board, in its rulemaking, may decide to treat the majority’s
opinion as having no binding effect on the Board. Nonetheless, the
potential impact of the majority’s opinion is as described in the text.
9
To sum up, the Board’s attorney confessed that the rationale
of the Board’s General Counsel for opposing remand was in
error. The Board’s attorney also raised doubt that in opposing
a remand, she was expressing the considered judgment of the
Members of the Board.8 Even so, the panel majority has denied
the motion to remand the case pending the rulemaking. The
majority’s rationale is simply this: if Board counsel9 wants the
court to go ahead and decide the merits, the court should do so.
In relying solely on the position of Board counsel, the majority
acts as if it were dealing with some sort of “waiver,” with a
known right the Board itself has intentionally relinquished. See
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). But that is not
accurate. The Board has no “right” to relinquish. To treat this
controversy as the majority does is not only to ignore the
substantial interests of Browning-Ferris, but also to neglect the
8
The Board’s decision to take up the same question present in
this case, through rulemaking rather than adjudication, suggests
otherwise.
9
I put this in terms of “Board counsel” rather than “the Board.”
When asked at oral argument on the remand motion whether the
Board’s General Counsel polled or consulted the Members of the
Board about the position then being advocated, Board counsel was
unable to say. Oral Arg. Tr. 18:25–19:20 (July 3, 2018) (reprinted in
the addendum to this opinion). The General Counsel is “an
independent official appointed by the President,” Lewis v. NLRB, 357
U.S. 10, 16 n.10 (1958); is “independent of the Board’s supervision
and review,” NLRB v. United Food & Commercial Workers Union,
Local 23, 484 U.S. 112, 118 (1987); and “answers to no officer
inferior to the President,” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 948
(2017) (Thomas, J., concurring). Indeed, in this case the General
Counsel appeared as amicus before the Board and advocated a
position that the Board ultimately rejected. Browning-Ferris, 362
N.L.R.B. No. 186, at 12–13 n.68.
10
judiciary’s responsibility to avoid interfering with an agency’s
ongoing rulemaking proceedings.
III.
As to the merits, I rely on the comprehensive opinions of
Member Miscimarra and Member Johnson dissenting in this
case and of the Board majority in the now-vacated Hy-Brand
case. Both opinions show how pernicious the Board’s decision
would be if it were implemented across the American economy.
Both opinions also show that the Board majority did not
accurately describe the common law of joint employer. And
both opinions remain largely unanswered.
Although I cannot improve on what the Board’s dissenters
said in Browning-Ferris or on what the previous Board majority
said in Hy-Brand, I offer a few comments about the decision of
our court. I do so because the decision disregards and
contradicts a strong, clear, accepted and well-founded body of
common law cases. Instead of clarity it adds another layer of
ambiguity. Rather than narrowing the Board’s broad
pronouncements, the majority opinion endorses and expands
them.
A.
The majority’s errors about the meaning of the common law
may be traced to two sources. The first is its failure to recognize
the importance of Leadpoint’s clear and undisputed status as an
independent contractor.10 The majority thinks that under the
10
See J.A. 17 (Browning-Ferris–Leadpoint Services Agreement,
describing Leadpoint as “an independent contractor of” Browning-
Ferris); Browning-Ferris, 362 N.L.R.B. No. 186, at 47 (dissenting op.
of Members Miscimarra & Johnson) (describing the companies as
11
common law a company’s status as an independent contractor
has no bearing on the joint employer question this case presents.
Maj. Op. 32. As I will explain, the opposite is true. It seems
likely that the Board, in its rulemaking, will come to the same
conclusion.
The other source of the majority’s errors is its failure to
notice that the common law of joint employer may vary
according to the nature of the business arrangement between
companies, or between consumers and companies.11 The joint
employer issue in franchising arrangements, for example,
involves different considerations than those involved in the
typical principal-independent contractor arrangement.
“admittedly separate and independent”); Pet’r/Cross-Resp’t Br. 3,
11–12, 46 (describing Leadpoint as “an independent business,” “a
wholly separate business,” and an independent service provider);
Board Br. 5, 57 n.30 (discussing the “contracted” or “contractual”
agreement, without contesting Browning-Ferris’s asserted nature of
the relationship); Intervenor Br. 2, 32 (same, mentioning “the fact that
[Browning-Ferris] entered into a contract with Leadpoint to perform
a service”). Furthermore, in the proceedings before the Board,
Leadpoint itself characterized its relationships with Browning-Ferris
and other waste management companies as those of independent
contractors. Opp’n Pet’r’s Req. Review, Browning-Ferris Indus. of
Cal., Inc., Case No. 32-RC-109684, at 1–2 (Sept. 10, 2013), available
at http://apps.nlrb.gov/link/document.aspx/09031d45813fb5e1.
11
For example suppose I hire a lawn service company. Of course
its operations for me are performed on my premises. I direct the
company – and thus its employees – to cut my lawn at a certain height,
to arrive and depart at a certain time, to use only mulching mowers
and so forth. I do not pay the company’s employees’ wages or
benefits but I contract to pay the company at a particular hourly rate
for their work. According to the Board and the majority opinion here,
what I have just described is evidence indicating that I am the joint
employer of the lawn service company’s employees.
12
Browning-Ferris, 362 N.L.R.B. No. 186, at 45–47 (dissenting
op). Yet the majority opinion declares that “indirect control” is
“relevant” across the broad spectrum of business relationships
– about which neither I nor my colleagues have any experience
or familiarity.12
So I come back to the common law, which is supposed to
control our decision and should have controlled the Board’s.
Under the common law, employees of a true independent
contractor cannot be considered employees of the company who
hired the contractor (the principal, or in this case Browning-
Ferris). Stated in terms of the common law of agency: “An
independent contractor is not the servant of his employer. The
relation of master and servant does not exist between an
employer and the servants of an independent contractor, nor
between an independent contractor and the servant of a
subcontractor, and he is not responsible as a master, either to or
for them.” 39 C.J. Master and Servant § 8 (1925) (emphasis
added)13 ; see also 30 C.J.S. Employer-Employee § 16 (2017)
(“The relationship of employer and employee likewise does not
12
The result may impact a wide range of business relationships:
“e.g., user-supplier, contractor-subcontractor, franchisor-franchisee,
predecessor-successor, creditor-debitor, lessor-lessee, parent-
subsidiary, and contractor-consumer.” The Standard for Determining
Joint-Employer Status, 83 Fed. Reg. at 46,686.
13
The majority notes that the next sentence of the Corpus Juris
allows the employment relationship to exist where the employer
controls the “means and methods” of the work of the contractor. Id.
Of course, in that situation a true independent contractor relationship
does not exist. The common law recognized that the subterfuge of
employing individuals through essentially a shell entity – “nominal
employment by an independent contractor” – would not undermine an
employment relationship where it otherwise would exist. Id. There
is no suggestion that Leadpoint is such a legal fig leaf.
13
exist between an employer or contractee and the employees of
an independent contractor . . ..”).
The common law is “the dominant consensus of common-
law jurisdictions.” Field v. Mans, 516 U.S. 59, 70 n.9 (1995).14
In support of the common-law rule just quoted, 60 common-law
cases from across the country over the years are cited, and there
are doubtless more.15 39 C.J. Master and Servant § 8, at 38
n.53. That is indeed a “dominant consensus.” In contrast,
neither the Board nor the majority opinion here can cite any line
of common-law cases going the other way.16 It follows that
14
Unlike statutes passed by legislatures or regulations issued by
agencies, the common law is judge-made:
The common law judge analyzes past judicial decisions,
considers the reasons behind the decisions, comes up with
a principle to explain the cases, and then applies that
principle to a new case.
A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft
Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1044 (2006); see
also Karl Llewellyn, The Common Law Tradition: Deciding Appeals
(1960).
15
E.g., Bokoshe Smokeless Coal Co. v. Morehead, 126 P. 1033
(Okla. 1912), quoted infra note 30. A mine worker brought a personal
injury suit against the mine owner. The owner had contracted with
another company to operate the mine. The question was whether the
mine worker was an employee also of the mine owner. The court held
that the mine owner was not a joint employer because the mine
operator was an independent contractor.
16
Boire v. Greyhound Corp., 376 U.S. 473 (1964), is not to the
contrary. The Court did not purport to be determining the common
law of joint employment; it cited no common law cases or authorities;
the issue in the case was one of jurisdiction; and it was not until four
14
under the common law Leadpoint’s employees may not be
considered employees of Browning-Ferris. As the Supreme
Court held in Denver Building, a contractor’s “supervision over
the subcontractor's work[] did not eliminate the status of each as
an independent contractor or make the employees of one the
employees of the other.” NLRB v. Denver Bldg. & Constr.
Trades Council, 341 U.S. 675, 689–690 (1951) (emphasis
added). “The business relationship between independent
contractors is too well established in the law to be overridden
without clear language doing so.” Hy-Brand, 365 N.L.R.B. No.
156, at 11 (quoting id. at 690).
years later that the Court, in NLRB v. United Insurance Co., 390 U.S.
254, 256 (1968), ruled that “we should apply the common-law agency
test here in distinguishing an employee from an independent
contractor.” See also Cooper Indus., Inc. v. Aviall Servs., Inc., 543
U.S. 157, 170 (2004) (quoting Webster v. Fall, 266 U.S. 507, 511
(1925)) (“Questions which merely lurk in the record, neither brought
to the attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents.”).
Similarly, Dunkin’ Donuts Mid-Atlantic Distribution Center, Inc.
v. NLRB, 363 F.3d 437 (D.C. Cir. 2004), did not examine the
relationship between the employers in the case. The evidence also
reflected direct control. Additionally, “the Board decision on review
in [Dunkin’ Donuts] predated Airborne Express, and no party argued
that ‘direct and immediate’ control was the proper standard.” NLRB
v. CNN Am., Inc., 865 F.3d 740, 750 n.5 (D.C. Cir. 2017).
And the court in NLRB v. Browning-Ferris, 691 F.2d 1117, 1124
(3d Cir. 1982), mistakenly relied on Greyhound in concluding that the
independent contractor determination was immaterial. But there too,
the evidence suggested that there was direct control that may not have
supported an independent contractor relationship.
15
Section 5 of the Restatement (Second) of Agency, from
which the majority opinion derives its so-called “indirect
control” test,17 recites the same common law rule as the 1925
treatise quoted above. “In no case are the servants of a non-
servant agent the servants of the principal.” Restatement
(Second) of Agency § 5 (“Subagents and Subservants”), cmt. e
(1958). A “servant” is an “employee.”18 An agent who is not an
employee – a “non-servant agent” – is an “independent
contractor.”19 Thus, “in no case” are the employees of an
independent contractor employees of the company who hired the
contractor. “In no case,” in other words, could Leadpoint’s
employees also be the employees of Browning-Ferris.
The distinction between employees and independent
contractors,20 which the majority deems inconsequential, is
17
Maj. Op. 40 n.12; Browning-Ferris, 362 N.L.R.B. No. 186, at
14 n.75. The Restatement’s definitions and the accompanying
discussion of the employee-independent contractor distinction largely
concern imposition of vicarious liability, which is not pertinent in the
joint-employer setting where employees already have at least one
potentially deep-pocket employer.
18
See id. § 2 (“Master; Servant; Independent Contractor”), cmt. d
(“The word ‘employee’ is commonly used in current statutes to
indicate the type of person herein described as servant.”).
19
See id. § 2, cmt. b (“An agent who is not a servant is, therefore,
an independent contractor . . ..”). Think of a real estate broker for
homeowners seeking to sell their house.
20
In a pre-Taft-Hartley-Act discussion of the distinction between
employee and independent contractor, Judge Learned Hand pointed
out that even if the principal intervenes in the contractor’s work,
“[s]ome such supervision is inherent in any joint undertaking, and
does not make the contributing contractors employees.” Radio City
Music Hall Corp. v. United States, 135 F.2d 715, 718 (2d Cir. 1943).
16
written into the National Labor Relations Act. In NLRB v.
Hearst Publications, Inc., 322 U.S. 111 (1944), the Court held
that under the Act “newsboys” – adults who distributed
newspapers on street corners – were “employees” of the
newspaper publishers. “Congress was so incensed with the
fanciful construction of its legislative intention in Hearst that in
1947 it specifically excluded ‘independent contractors’ from the
coverage of the Act and condemned the Court’s rationale in
Hearst Publications as giving ‘far-fetched meanings’ to the
words Congress has used.” Local 777, Democratic Union Org.
Comm. v. NLRB, 603 F.2d 862, 905 (D.C. Cir. 1978) (on petition
for rehearing); see also Labor Management Relations (Taft-
Hartley) Act, 1947, Pub. L. No. 80-101, § 101, 61 Stat. 136,
137–38 (amending § 2(3) of the National Labor Relations Act
and codified at 29 U.S.C. § 152(3)); Harvey M. Adelstein &
Harry T. Edwards, The Resurrection of NLRB v. Hearst:
Independent Contractors under the National Labor Relations
Act, 17 U. Kan. L. Rev. 191 (1968). In short, Congress decided
that the newspaper distributors in Hearst were independent
contractors, not employees of the publishers. Those distributors,
those independent contractors, had employees of their own. See
H.R. Rep. No. 80-245, at 18 (1947). Consistent with the
common law rule set forth above, the distributors’ employees
could not be considered employees of the newspaper
publishers.21 If, as our court stated, Congress was “incensed” at
the Supreme Court’s treatment of the distributors as employees,
21
The majority opinion invokes “common sense” in support of its
views on “indirect control.” Maj. Op. 39. But consider this typical
scenario. The main company observes an employee of an independent
contractor. The employee is underperforming and so the main
company asks the independent contractor to replace him. According
to the majority, the request could render the main company a joint
employer of the underperforming employee. That is not my idea of
“common sense,” and it is not the common law’s either.
17
one can only imagine Congress’s reaction to treating the
distributors’ employees as employees of the publishers. Yet that
is where the majority opinion leads.22
B.
A few more observations about the majority opinion are in
order.
On page after page, paragraph after paragraph, the majority
drags a red herring across the case. It insists that “indirect
control,” whatever that may encompass, and a potential right to
control, are “relevant.”23 This frames the issue as if we were
22
The “newsboys” themselves were closely supervised by the
publishers:
The publishers furnish boxes, racks, money change aprons,
and placards advertising special features contained in the
newspapers . . .. Generally, the newsboy is required to be
at his post from the time the newspapers customarily
appear on the street to the time settlement is made. The
. . . record is ‘replete,’ with instances in which [the
publishers’] district managers have removed, permanently
or temporarily, newsboys from their corners or transferred
them from one location to another. The record also
contains evidence with respect to the extent of the
publishers’ supervision over the conduct of the newsboys
while they are engaged in selling newspapers on the street;
the diligence of the newsboys is closely observed by the
circulation department.
Hearst Publ’ns, Inc. v. NLRB, 136 F.2d 608, 611 (9th Cir. 1943),
rev’d, 322 U.S. 111.
23
“Relevance” is not the issue. The majority in Hy-Brand posed
18
merely dealing with an evidentiary dispute. If only relevancy
were at issue, the Federal Rules of Evidence, which the Board
has adopted,24 would control. But as everyone else recognizes,
the issues before us are much more serious, and the majority
opinion fails to confront them.
Consider the majority opinion on its own terms. Under
Rule 401(a) of the Federal Rules of Evidence, evidence is
“relevant” if it tends to make a fact of consequence “more or
less probable than it would be without the evidence.”25 In any
relevancy analysis there is an essential step. The majority’s
dozens of references to relevancy omit that step. “Relevancy is
not an inherent characteristic of any item of evidence . . ..” Fed.
R. Evid. 401 advisory committee’s note. As Professor James
explained in a highly-regarded article, to “determine the
the issue in the case this way:
Our fundamental disagreement with the Browning-Ferris
test is not that it treats indicia of indirect, and even
potential, control to be probative of joint-employer status,
but that it makes such indicia potentially dispositive
without any evidence of direct control in even a single
area. Under the common law, in our view, evidence of
indirect control or contractually-reserved authority is
probative only to the extent that it supplements and
reinforces evidence of direct control.
365 N.L.R.B. No. 156, at 4.
24
29 C.F.R. § 102.39 (“The hearing will, so far as practicable, be
conducted in accordance with the rules of evidence applicable in the
district courts of the United States . . ..”).
25
When the majority writes of “relevancy” this must be what it
means. No other definition comes to mind.
19
relevancy of an offered item of evidence one must first discover
to what proposition it is supposed to be relevant.”26 The “fact of
consequence” made more or less probable must be identified.
The majority opinion never identifies what fact it thinks
evidence of indirect control makes more (or less) likely. Yet
that gets to the heart of this case and is the cause of much of the
controversy surrounding it.
Before its decision here, the Board’s well-established, easily
understood rule was that a company could not be considered a
joint employer of another company’s employees unless it
exercised direct and immediate control or supervision over those
employees.27 Suppose that were still the law.28 If so, evidence
of indirect control would be “relevant” but not in the way the
majority thinks. Such evidence would not tend to show that the
company was a joint employer as the majority assumes. Just the
opposite. The evidence would tend to show that the company
was not a joint employer.
Take the evidence in this case. On one day a Browning-
Ferris manager observed two Leadpoint employees drinking a
bottle of whiskey while on duty. The Browning-Ferris manager
notified Leadpoint’s supervisor, and the supervisor removed the
employees from the plant. The Browning-Ferris manager also
26
George F. James, Relevancy, Probability and the Law, 29 Calif.
L. Rev. 689, 696 n.15 (1941). The Advisory Committee’s Note cites
and relies on Professor James’ work, and Rule 401 adopts the test of
relevancy he proposed in 1941.
27
Browning-Ferris, 362 N.L.R.B. No. 186, at 22, 24 (dissenting
op.); Hy-Brand, 365 N.L.R.B. No. 156, at 5–6; H.R. Rep. No. 115-
379, at 6.
28
I assume it is not, although the majority opinion is unclear
about this, perhaps intentionally.
20
sent an e-mail to Leadpoint’s President requesting him to fire
these two employees. (Leadpoint eventually discharged one of
them.)
What, if anything, should be made of this incident on one
day on one shift involving two employees in a workforce of
more than two hundred employees? My colleagues think and
the Board thought, Browning-Ferris, 362 N.L.R.B. No. 186, at
18, it showed that Browning-Ferris jointly employed not only
the two drinking employees, but also the entire Leadpoint
workforce. That is, they treat the incident as evidence that
Browning-Ferris was exercising “indirect control” over
Leadpoint’s employees and thus was the joint employer of those
employees.
The common law and any objective observer would view
the majority’s and Board’s conclusion as nonsense. This single
event was trivial in the larger picture of employer-employee-
independent relations year-to-year, day-to-day, hour-to-hour at
the Browning-Ferris facility. To the extent the incident had any
evidentiary value, any bearing on the joint employer issue, it
tended to show the opposite of what the majority seems to
suppose.
The Regional Director made this point when he evaluated
this evidence. He decided that the evidence tended to show that
Browning-Ferris did not exercise direct control and therefore
was not a joint employer. The Regional Director put it this way:
“Surely if BFI had the authority to terminate Leadpoint
employees, [BFI’s manager] would have done this without
having to email Leadpoint’s President, located in Arizona, to do
21
so.” Browning-Ferris Indus. of Cal., Inc., Case 32-RC-109684,
2013 WL 8480748, at *9 (N.L.R.B. Aug. 16, 2013).29
To sum up, both the Board and the Regional Director
considered this example of indirect control to be relevant. To
the Board the evidence made it more likely that Browning-Ferris
was a joint employer. To the Regional Director the evidence
made it less likely.
I have gone into detail about this one item of evidence to
illustrate why the majority opinion’s mere assertion that
evidence of indirect control is “relevant” is not only confused
and confusing, but also fails to confront one of the main issues
in the case – namely, whether direct and immediate control or
supervision is a necessary prerequisite to a finding of joint
employer status.30
29
The incident is described in the majority opinion, see Maj. Op.
11, but missing from that account is the Regional Director’s finding
quoted in the text.
30
To suppose that indirect control would suffice to establish joint
employer status would be to disregard the common relationship
between companies and subcontractors:
If the right to inspect and exercise a general supervision
destroys the independence of the contractor, then it would
follow that there would be no such thing as an independent
contractor, because no one is going to let a contract
without reserving the right to see that it is performed in
accordance with the contract, and, if he has no right to
supervise, no right to inspect, and no right to reject, then he
would not let the contract at all.
Bokoshe, 126 P. at 1036.
22
One additional point. The Regional Director was surely
correct in his assessment of this particular incident. Under the
common law “the existence of the power to discharge is
essential” to the right of control, and therefore to establish joint
employer status. 39 C.J. Master and Servant § 4 (“Direction and
Control”). Browning-Ferris did not have that power; Leadpoint
did. The Board plainly erred in deciding otherwise.
C.
While endorsing “indirect control” as a common law
standard for determining joint employer status,31 the majority
confesses that it does not know exactly what the Board had in
mind by “indirect control” or how the common law defines
those terms in the joint employer context. Maj. Op. 46–47. This
revealing admission is hardly surprising. The majority is unable
to extract any “indirect control” standard from the common
law32 for an obvious reason. There is no “common law”
principle as of 1947 standing for the proposition that “indirect
control” could render one company a joint employer of another
company’s employees, especially if that other company is an
independent contractor.
31
Maj. Op. 38. United Insurance, 390 U.S. at 256, held that
under the 1947 Taft-Hartley Act, “there is no doubt that we should
apply the common-law agency test here in distinguishing an employee
from an independent contractor.”
32
Although the majority insists that it is exercising de novo
review, it remands the case because the Board did not adequately
explain what it meant by “indirect control.” Id. at 44–48. It is hard to
see why, on de novo review, the adequacy of the Board’s explanation
is at issue. On de novo review the court’s judgment about the content
of the common law displaces whatever the Board has to say on the
subject.
23
The majority cites the illustrations in the 1958 Restatement
(Second) of Agency § 5 – the “sub-servant” doctrine – as
support. Maj. Op. 40 n.12. The Board did the same. Browning-
Ferris, 362 N.L.R.B. No. 186, at 14 & n.74. But those
illustrations have no bearing on the issue. In the first
illustration, the miners – who hired and paid assistants – were
employees of the mine operator, not independent contractors
like Leadpoint. The same is true of the second illustration of a
company operating “markets” (grocery stores?): unlike
Leadpoint, the manager of each market was an employee of the
market owner.
In other words, those illustrations would be comparable
only if Leadpoint were an employee of Browning-Ferris, which
it is not. The notes to this Restatement section reinforce the
view stated above that under the common law employees of an
independent contractor cannot be considered employees of the
company that hired the independent contractor. “Except in the
case of subservants, it is difficult to see how the subagent can be
the principal’s servant, since his employer is a nonservant agent
not subject to the principal’s direction.” Restatement (Second)
of Agency § 5 reporter’s notes, at 33.
The Chamber of Commerce’s amicus brief points out that
the “sub-servant doctrine applies when both the servant and the
sub-servant are servants of a single master.” Chamber of
Commerce Br. 25. In the joint-employer setting, when one of
the employers is an independent contractor and not the servant
of the other, the doctrine is therefore inapplicable. Id. at 26.
In the text of its opinion, the majority also seeks to fortify
its view of the common law of joint employers with three state
court decisions. Maj. Op. 39. Of course three opinions over
more than half a century hardly constitute some “dominant
consensus of common-law jurisdictions.” Field, 516 U.S. at 70
 24
n.9. In any event, the holdings in these cases lend no support to
the majority.
The first case, White v. Morris, 152 S.E.2d 417 (Ga. Ct.
App. 1966), was merely an intermediate appellate decision
handed down 19 years after passage of the Taft-Hartley Act. To
claim that the case reflects some general common law regarding
joint employers in 1947 is untenable. Besides, the case
presented no issue regarding joint employer status.33
The second case the majority cites, Wallowa Valley Stages,
Inc. v. Oregonian Publ’g Co., 386 P.2d 430 (Or. 1963) (en
banc), is also inapposite. It too could not represent the dominant
consensus as of 1947. The case is a weak reed anyway in light
of its later repudiation by the Oregon Supreme Court. Woody v.
Waibel, 554 P.2d 492, 494 n.3 (Or. 1976) (en banc). Besides, no
issue regarding the common law of joint employer was
presented.34
33
The defendant Morris was a servant of General Services
Corporation and not directly controlled by Sears, the third party in
question. Id. at 419. The issue dealt with the nature of the
relationship between General Services and Sears. Denying summary
judgment, the court found Morris to be a potential servant of Sears
based on indirect control, but only because it found General Services
and Sears to be in an alleged master-servant relationship. Id. The
negative inference from the case is that if General Services were
Sears’s independent contractor, then Morris would not have been a
servant of Sears and indirect control would not have been that
conclusion. This is precisely the setting of this case.
34
The question in Wallowa was whether a newspaper deliverer
was an independent contractor, in which event the newspaper
publisher would not be liable for a deliverer’s negligent operation of
his automobile. 386 P.2d at 433. Furthermore, although the Wallowa
court in one line used the word “indirectly” in referring to the
25
The third case, Nicholson v. Atchinson, T. & S. F. Ry., 147
P. 1123 (Kan. 1915), is even farther afield. The question was
whether the intermediate company was an independent
contractor (such as Leadpoint). The court held that it was not
because the principal (the Santa Fe Company) “organized,
officered, and financed [it] entirely.” Id. at 1124. It followed
that the injured employee working for the intermediate company
had a single employer – the Santa Fe Company. Id. at 1126.35
There are other common law decisions scattered throughout
footnotes in the majority opinion. An analysis of these cases
reveals that none of them concerned joint employment.36 Many
publisher’s control, all of the examples the court mentioned amounted
to direct control. The majority opinion states that there is no case in
which “we have applied an employee-or-independent-contractor test
to resolve a question of joint employment.” Maj. Op. 32. Ironically,
the majority’s reliance on Wallowa makes this such a case.
35
The plaintiff was injured while engaged in railroad
construction. Santa Fe tried to avoid tort liability on the ground that
the plaintiff was not its employee but the employee of another
company. The court rejected Santa Fe’s argument because Santa Fe
created and controlled the other company, which showed that it was
not an independent contractor.
36
See, e.g., NLRB v. Town & Country Elec., Inc., 516 U.S. 85
(1995); Nationwide Mut. Ins. v. Darden, 503 U.S. 318 (1992); Cmty.
for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); Kelley v. S.
Pac. Co., 419 U.S. 318 (1974); Logue v. United States, 412 U.S. 521
(1973); United Ins., 390 U.S. 254; Denver Bldg., 341 U.S. 675; Chi.,
Rock Island & Pac. Ry. v. Bond, 240 U.S. 449 (1916); Standard Oil
Co. v. Anderson, 212 U.S. 215 (1909); Singer Mfg. Co. v. Rahn, 132
U.S. 518 (1889); Little v. Hackett, 116 U.S. 366 (1886); FedEx Home
Delivery v. NLRB, 849 F.3d 1123 (D.C. Cir. 2017); Al-Saffy v. Vilsack,
827 F.3d 85 (D.C. Cir. 2016); Lancaster Symphony Orchestra v.
NLRB, 822 F.3d 563 (D.C. Cir. 2016); Doe v. Wal-Mart Stores, Inc.,
26
dealt with the question whether a tortfeasor was an employee or
an independent contractor, an issue not presented in this case.
IV.
In short, the majority should not have released its opinion
in the face of the Board’s rulemaking. The majority has offered
no reason for its rejection of Browning-Ferris’s remand request.
572 F.3d 677 (9th Cir. 2009); Gulino v. N.Y. State Educ. Dep’t, 460
F.3d 361 (2d Cir. 2006); Redd v. Summers, 232 F.3d 933 (D.C. Cir.
2000); Aurora Packing Co. v. NLRB, 904 F.2d 73 (D.C. Cir. 1990);
Constr., Bldg. Material, Ice & Coal Drivers Union, Local No. 221 v.
NLRB, 899 F.2d 1238 (D.C. Cir. 1990); N. Am. Van Lines, Inc. v.
NLRB, 869 F.2d 596 (D.C. Cir. 1989); City Cab Co. of Orlando v.
NLRB, 628 F.2d 261 (D.C. Cir. 1980); Local 777, 603 F.2d 862; Local
814, Int’l Bhd. of Teamsters v. NLRB, 512 F.2d 564 (D.C. Cir. 1975)
(per curiam); Joint Council of Teamsters No. 42 v. NLRB, 450 F.2d
1322 (D.C. Cir. 1971) (per curiam); Dovell v. Arundel Supply Corp.,
361 F.2d 543 (D.C. Cir. 1966); Grace v. Magruder, 148 F.2d 679
(D.C. Cir. 1945); Radio City, 135 F.2d 715; Norwood Hosp. v. Brown,
122 So. 411 (Ala. 1929); Ayala v. Antelope Valley Newspapers, Inc.,
327 P.3d 165 (Cal. 2014); S. A. Gerrard Co. v. Indus. Accident
Comm’n, 110 P.2d 377 (Cal. 1941); Schecter v. Merchants Home
Delivery, Inc., 892 A.2d 415 (D.C. 2006); Van Watermeullen v. Indus.
Comm’n, 174 N.E. 846 (Ill. 1931); Bush v. Wilson & Co., 138 P.2d
457 (Kan. 1943); Metzinger v. New Orleans Bd. of Trade, 44 So. 1007
(La. 1907); Tuttle v. Embury-Martin Lumber Co., 158 N.W. 875
(Mich. 1916); S. Exp. Co. v. Brown, 7 So. 318 (Miss. 1890); Bobik v.
Indus. Comm’n, 64 N.E.2d 829 (Ohio 1946); Odom v. Sanford &
Treadway, 299 S.W. 1045 (Tenn. 1927); City of Wichita Falls v.
Travelers Ins., 137 S.W.2d 170 (Tex. Civ. App. 1940); Mallory v.
Brigham Young Univ., 332 P.3d 922 (Utah 2014); Green Valley Coop.
Dairy Co. v. Indus. Comm’n, 27 N.W.2d 454 (Wis. 1947); Emps. Mut.
Liab. Ins. v. Indus. Comm’n, 284 N.W. 548 (Wis. 1939).
27
That the majority wants to preempt the rulemaking and confine
it strikes me as a quite improper rationale. I dissent not only on
this procedural ground, but also on the ground that the
majority’s analysis of the common law is inaccurate. That
analysis fails to take into account the common law importance
of Leadpoint’s status as an independent contractor. The
majority deems “indirect control” significant yet is unable to
marshal any body of common law cases to support that view.
And the majority, by treating this case as if it were some mere
evidentiary dispute, sows confusion and ambiguity when what
is needed is certainty and predictability.
28
ADDENDUM
July 3, 2018 Oral Argument
Transcript at 18:5–20:5
BOARD COUNSEL: . . . But I want to make clear,
though, that Chairman Ring’s letter, although he stated clearly
that the majority of the Board is committed to going to rule-
making as they’re in the process of going through internal
preparations to do so, the statements in his letter were his
own, and that, but the one statement that is clear is that he’s
keeping an open mind, and I just wanted to make sure that I
have that on the record given your discussion with –
JUDGE RANDOLPH: Are you suggesting that it might
not be a rule-making?
COUNSEL: Well, they’re committed to rule-making, and
they anticipate, as his letter stated they anticipate issuing a
notice of proposed rule sometime this summer.
JUDGE RANDOLPH: Okay.
COUNSEL: That statement was made in early June. But
I want to emphasize, though, that, to reiterate that the Board
really does believe that this Court should proceed to decision
on the merits, and there’s no reason other than that to even
consider retroactive application.
JUDGE RANDOLPH: When you say the Board wants to,
I mean, did you take a poll of the Board members?
COUNSEL: I’m standing before you, Your Honor. I’m
authorized to represent the Board and the Board’s position
that the Board would like this case decided.
29
JUDGE RANDOLPH: Yes. Well, usually when you
stand before us the Board has made a decision in writing, and
you’re defending an order and an opinion, but we don’t have
any order and we don’t have any opinion regarding whether
the Board wants to go forward with this case while the rule-
making is pending. And so, I’m asking you, you know, are,
has the Board voted on that issue?
COUNSEL: Well, I’m post-decisional counsel, and the
General Counsel is the one who prosecutes, and comes and
defends, or seeks enforcement in this Court. I am not privy to
the Board deliberations and such things as votes.
JUDGE RANDOLPH: So, you’re stating the General
Counsel’s view?
COUNSEL: I believe if the Board consulted with the
General Counsel if they had a different view we would have
heard it. But the position in the papers stands. And I do want
to note that when we are talking about what happens if the
case were remanded, if it were remanded on the merits of
course the Board would proceed with following the Court’s
instructions and limiting its decision position and all of its
determinations in line and consistent with that decision. Here,
if this Court were to remand on the basis of the news that a
rule may be coming out, a rule-making may be undertaken,
there’s many different options the Board could potentially
have, it has discretion in deciding how to handle its pending
cases.