UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BROWNING-FERRIS INDUSTRIES )
OF CALIFORNIA, INC., D/B/A/ BFI NEWBY )
ISLAND RECYCLERY, )
Employer, )
and )
)
FPR-II, LLC, D/B/A LEADPOINT )
BUSINESS SERVICES, )
)
Employer, ) Case 32-RC-109684
)
and )
)
SANITARY TRUCK DRIVERS AND )
HELPERS LOCAL 350, )
INTERNATIONAL BROTHERHOOD OF )
TEAMSTERS, )
)
Petitioner. )
_________________________________________)
BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
P. DAVID LOPEZ GAIL S. COLEMAN
General Counsel Attorney
EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION
Acting Associate General Counsel Office of General Counsel
131 M Street, NE, Room 5SW24L
LORRAINE C. DAVIS Washington, DC 20507
Assistant General Counsel (202) 663-4055
TABLE OF CONTENTS
Table of Authorities.......................................................................................... ii
Introduction...................................................................................................... 1
Statement of Facts............................................................................................ 2
Argument.......................................................................................................... 5
The Board should adopt the EEOC’s joint-employer standard, which is flexible enough to encompass a broad range of evolving workplace relationships and realities.................................................................................................... 5
Conclusion...................................................................................................... 11
Certificate of Service
TABLE OF AUTHORITIES
Cases
Airborne Freight Co., 338 NLRB 597 (2002)............................................. 6, 10
AM Property Holding Corp., 350 NLRB 998 (2007)..................................... 6-7
Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983).................................. 5, 10
Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977)............................... 10
Boire v. Greyhound Corp., 376 U.S. 473 (1964)............................................... 5
EEOC v. Papin Enters., Inc., No. 07-1548,
2009 WL 961108 (M.D. Fla. Apr. 7, 2009)................................................. 9-10
EEOC v. Skansa USA Bldg., Inc.,
550 Fed. App’x 253 (6th Cir. 2013)................................................................. 9
Floyd Epperson, 202 NLRB 23 (1973)............................................................. 5
Hoskins Ready-Mix Concrete, 161 NLRB 1492 (1966)...................................... 6
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)........................... 5
Jacobs v. Maricopa Cnty., 24 F.3d 247, 1994 WL 175424
(9th Cir. May 8, 1994) (unpublished)............................................................. 10
Jewel Smokeless Coal, 170 NLRB 392 (1968)................................................... 6
Jewel Tea Co., 162 NLRB 508 (1966).............................................................. 6
Laerco Transp., 269 NLRB 324 (1984)........................................................ 1, 6
Ma v. Dep’t of Health & Human Servs.,
EEOC Dec. No. 01962390, 1998 WL 295965 (May 9, 1998).......................... 8
Nationwide Ins. Co. v. Darden, 503 U.S. 318 (1992).................................... 7, 8
NLRB v. Browning-Ferris Indus., 691 F.2d 1117 (3d Cir. 1982)....................... 5
Owens v. Rush, 636 F.2d 283 (10th Cir. 1980)............................................... 10
Sibley Mem’l. Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973)..................... 10
TLI, Inc., 271 NLRB 798 (1984)................................................................... 1, 6
Trevino v. Celanese Corp., 701 F.2d 397 (11th Cir. 1983).............................. 10
Statutes
Title VII, 42 U.S. C. § 2000e(b)........................................................................ 5
NLRA, 29 U.S.C. § 152 (2).............................................................................. 5
Other Authority
EEOC Enforcement Guidance: Application of EEO Laws
to Contingent Workers Placed by Temporary Employment
Agencies and Other Staffing Firms (Dec. 3, 1997),
1997 WL 33159161....................................................................................... 7-9
Special Issues Regarding Multiple Entities: Joint Employers,
2 EEOC Compliance Manual § 2-III(B)(1)(a)(iii)(b) (2009),
2009 WL 2966755............................................................................................ 7
INTRODUCTION
The NLRB has invited interested amici to brief one or more of the following questions: (1) Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enf’d mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transp., 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees? (2) Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard? (3) If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?
The EEOC urges the Board to adopt the same joint-employer standard that the EEOC uses. The EEOC’s standard is more flexible, more readily adaptable to evolving workplace relationships and realities, and more consistent with the goals of remedial legislation such as Title VII and the NLRA.
STATEMENT OF FACTS[1]
Browning-Ferris Industries (“BFI”) operates a recycling facility. BFI has employees of its own, who generally work outside the facility. In addition, Leadpoint provides subcontracted employees to BFI. The subcontracted employees generally work inside the facility. The union seeks to represent a unit of employees whose scope differs depending on whether the Board considers Leadpoint to be the sole employer of the subcontracted employees or whether it considers Leadpoint and BFI to be joint employers.
A written agreement between Leadpoint and BFI states that Leadpoint is the sole employer of the subcontracted employees. BFI and Leadpoint maintain separate supervisors at the facility. Leadpoint’s supervisors create schedules for the subcontracted employees, oversee material streams, and work on the floor with the sorters. BFI’s supervisors supervise BFI drivers, heavy equipment operators, forklift operators, control room operators, and a single sorter. Leadpoint and BFI have their own human resources departments, each in a different location.
Pursuant to the written agreement, Leadpoint has sole authority to set the wage rates for the employees it provides to BFI, although it cannot set rates in excess of the wages paid by BFI to full-time employees who perform the same work without first obtaining BFI’s consent. Leadpoint independently pays all of its employees and gives them the option to enroll in healthcare and insurance plans. Leadpoint invoices BFI based on the number of hours that the subcontracted employees have worked.
Leadpoint recruits, tests, and hires its own employees. Additionally, Leadpoint counsels, disciplines, reviews, evaluates, and terminates them. BFI may not take any of these actions but may reject or discontinue the use of personnel. In practice, BFI sometimes recommends termination but Leadpoint makes independent decisions.
BFI and Leadpoint supervisors meet at the start of each shift to review the material in the facility and come up with a plan. BFI does not instruct Leadpoint on how to staff the lines or complete the work and does not instruct or give daily work directions to Leadpoint employees. BFI maintains productivity standards and may stop, start, or change the pace of the stream line. Leadpoint decides how to respond to these speed changes, such as by transferring additional Leadpoint employees to assist when necessary.
The Board’s regional director explained the joint employer standard as follows: “To determine whether two separate entities should be considered joint employers, the Board analyzes whether alleged joint employers share the ability to control or co-determine essential terms and conditions of employment. Essential terms and conditions of employment are those involving such matters as hiring, firing, discipline, supervision, and direction of employees. However, the putative joint employers’ control over these employment matters must be direct and immediate. The authority to make routine directions of where to do a job, rather than the manner in which to perform the work, is insufficient to support a joint employer finding.” Slip Op. at *7 (citations omitted).
Applying this standard, the regional director found that BFI and Leadpoint are not joint employers. He observed that with respect to the subcontracted employees, Leadpoint sets the pay scale and is the sole provider of benefits; has sole authority to control recruitment, hiring, counseling, discipline, and termination; provides sole supervision; and determines how, where, and when employees work. “To the extent that any BFI employee instructed a Leadpoint employee,” he said, “the instruction was merely routine in nature and insufficient to warrant a finding that BFI jointly controls Leadpoint employees’ daily work.” Id. at *10.
ARGUMENT
The Board should adopt the EEOC’s joint-employer standard, which is flexible enough to encompass a broad range of evolving workplace relationships and realities.
The concept of “joint employers” arose in the context of labor relations, Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), and was subsequently imported into the civil rights context. Armbruster v. Quinn, 711 F.2d 1332, 1336-37 (6th Cir. 1983), abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). Because Title VII was modeled on the NLRA, Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 366 (1977), and the definitions of “employer” in the two statutes are virtually identical, compare 42 U.S.C. § 2000e(b) (Title VII) with 29 U.S.C. § 152(2) (NLRA), the Board’s joint employer standard influences judicial interpretation of Title VII. The EEOC therefore has a strong interest in how the Board defines “joint employers.”
The Board’s definition has changed over time. Originally, the Board asked whether the putative employer “possessed sufficient control over the work of the employees.” Boire, 376 U.S. at 481; NLRB v. Browning-Ferris Indus., 691 F.2d 1117 (3d Cir. 1982). Applying this standard, the Board found joint employer status based on “indirect control” over wages and discipline, In re Floyd Epperson, 202 NLRB 23 (1973), enf’d, 491 F.2d 1390 (6th Cir. 1974); contractual authority to control some employment conditions even when that authority was never exercised, In re Jewel Tea Co., 162 NLRB 508 (1966); the need to include a party in meaningful collective bargaining, In re Jewell Smokeless Coal, 170 NLRB 392 (1968), enf’d, 435 F.2d 1270 (4th Cir. 1970); and whether a party “was the ultimate source of any wage increases . . . that might be negotiated with a union,” In re Hoskins Ready-Mix Concrete, 161 NLRB 1492 (1966). See generally In re Airborne Freight Co., 338 NLRB 597 (2002) (Member Liebman, concurring) (describing history of joint employer doctrine).
Since the mid-1980s, however, the Board has required a more stringent showing “that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.” TLI, Inc., 271 NLRB 798, at *1; Laerco, 269 NLRB 324, at *3. “Minimal and routine . . . supervision” is insufficient to confer joint employer status. Laerco, 269 NLRB 324, at *4; see also TLI, 271 NLRB 798, at *2 (“limited and routine” supervision insufficient). The Board considers supervision to be minimal and routine “where a supervisor’s instructions consist primarily of telling employees what work to perform, or where and when to perform the work, but not how to perform the work.” In re AM Property Holding Corp., 350 NLRB 998, at *6 (2007). Contractual authority to approve hires is also insufficient unless that authority is actually used. Id. (Member Liebman, concurring in part and dissenting in part) at n.2.
This standard is more restrictive than the EEOC’s. The EEOC’s Compliance Manual states: “The term ‘joint employer’ refers to two or more employers that are unrelated or that are not sufficiently related to qualify as an integrated enterprise, but that each exercise sufficient control of an individual to qualify as his/her employer.” Special Issues Regarding Multiple Entities: Joint Employers, 2 EEOC Compliance Manual § 2-III(B)(1)(a)(iii)(b) (2009), 2009 WL 2966755, at text accompanying n.109. To determine whether one or both businesses exercise sufficient control, the EEOC considers factors derived from common law principles of agency. EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997), 1997 WL 33159161, at *5. Thus, the EEOC considers, inter alia, who hires and fires, who assigns work, who controls daily activities, who furnishes equipment, where the work is performed, who pays the worker, who provides employee benefits, how the worker is treated for tax purposes, and whether the worker and the putative employer believe that they are creating an employer-employee relationship. Id. at *4 (citing Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
The EEOC does not consider any one factor to be decisive and emphasizes that “it is not necessary to satisfy a majority of factors. . . . Many factors may be wholly irrelevant to particular facts. Rather, all of the circumstances in the worker’s relationship with each of the businesses should be considered to determine if either or both should be deemed his or her employer.” Id. at *5. The Enforcement Guidance specifically criticizes two district court decisions for placing “undue emphasis on daily supervision of job tasks and underestimat[ing] the significance of other factors indicating an employment relationship.” Id. at n.12 (discussing Williams v. Caruso, 966 F. Supp. 287 (D. Del. 1997), and Kellam v. Snelling Personnel Servs., 866 F. Supp. 812 (D. Del. 1994), aff’d mem., 65 F.3d 162 (3d Cir. 1996)). The EEOC’s approach is consistent with common law, which “contains ‘no shorthand formula or magic phrase that can be applied to find the answer. [A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive.’” Darden, 503 U.S. at 324 (quoting NLRB v. U.S. Ins. Co. of Am., 390 U.S. 254, 258 (1968)); see also Ma v. Dep’t of Health & Human Servs., EEOC Dec. No. 01962390, 1998 WL 295965 (May 29, 1998) (applying common law test to joint employer analysis under Title VII).
Under the EEOC’s definition, staffing firms and their clients generally qualify together as joint employers. Staffing firms usually qualify because:
the firm typically hires the worker, determines when and where the worker should report to work, pays the wages, is itself in business, withholds taxes and social security, provides workers compensation coverage, and has the right to discharge the worker. The worker generally receives wages by the hour or week rather than by the job and often has a continuing relationship with the staffing firm. Furthermore, the intent of the parties typically is to establish an employer-employee relationship.
Id. Clients of staffing firms also usually qualify during a job assignment because:
the client usually exercises significant supervisory control over the worker. Clients also qualify as employers of the workers assigned to them if the clients have sufficient control over the workers under the Darden factors. For example, the client is an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work to be performed, to make or change assignments, and to terminate the relationship.
Id. at *6.
The EEOC’s joint employer definition is intentionally flexible. In EEOC v. Skansa USA Building, Inc., 550 Fed. App’x 253 (6th Cir. 2013), the EEOC focused on a general contractor’s authority to direct the daily activities of a subcontractor’s employees, its actual supervision of those employees (in contravention of an agreement that the subcontractor would hire a supervisor), its practical ability to make the subcontractor fire employees by barring them from the worksite (the jobs were project-specific), and the fact that it carried workers compensation and liability insurance for the subcontractor’s employees. In EEOC v. Papin Enterprises, Inc., No. 07-1548, 2009 WL 961108 (M.D. Fla. Apr. 7, 2009), in contrast, the EEOC focused on a franchisor’s authority to insist on a no-facial-jewelry policy for its franchisee’s employees. The considerations differ based on the facts of each case.
In light of the remedial purposes of Title VII and the NLRA, the EEOC’s joint employer definition more accurately reflects congressional intent than the Board’s definition. Every court of appeals to have reached the issue has held that the definition of “employer” under Title VII is to be construed broadly. See, e.g., Armbruster, 711 F.2d at 1336; Trevino v. Celanese Corp., 701 F.2d 397, 403 (11th Cir. 1983); Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th Cir. 1977); Sibley Mem’l. Hosp. v. Wilson, 488 F.2d 1338, 1340-41 (D.C. Cir. 1973); Owens v. Rush, 636 F.2d 283, 287 (10th Cir. 1980); Jacobs v. Maricopa Cnty., 24 F.3d 247, 1994 WL 175424, at *2 (9th Cir. May 9, 1994) (unpublished). This approach argues for recognizing more, not fewer, joint employers. As Board Member Liebman has observed, “workplace relationships are becoming more varied as domestic industries continue to seek flexibility and . . . the increasing contracting-out of work is blurring . . . distinctions between employer and client contractor.” Airborne Freight, 338 NLRB 597, at *4 (Member Liebman, concurring). A flexible definition of joint employers addresses this changing reality.
CONCLUSION
For the foregoing reasons, the EEOC urges the Board to adopt the more flexible joint-employer definition utilized by the EEOC, thereby furthering the legislative purposes underlying Title VII and the NLRA in an ever-changing workplace.
Respectfully submitted,
P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
/s/ Gail S. Coleman
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE, Room 5SW24L
Washington, DC 20507
(202) 663-4055
CERTIFICATE OF SERVICE
I, Gail S. Coleman, hereby certify that I filed this brief electronically in Adobe PDF format with the Board at www.nlrb.gov this 15th day of June, 2014. I further certify that I served all case participants via email (where available) or by UPS overnight delivery (where email is unavailable) at the following addresses:
Employer
(Legal Representatives) (Primary)
Mark G. Kisicki Carl Mennie
Thomas M. Stanek Browning-Ferris Industries of
Elizabeth M. Townsend California, Inc.
Ogletree Deakins Nash Smoak and Stewart PC 1601 Dixon Landing Rd.
Esplanade Ceter III Milpitas, CA 95035-1234
2415 East Camelback Road, Suite 800
Phoenix, AZ 85016-9291
Email: mark.kisicki@ogletreedeakins.com
Email: Thomas.stanek@ogletreedeakins.com
Email: Elizabeth.townsend@ogletreedeakins.com
(Legal Representative) (Primary)
Michael G. Pedhirney Vincent Haas
Littler Mendelson, PC FPR-II LLC d/b/a Leadpoint
650 California Street, Fl. 20 Business Services
San Francisco, CA 94108-2601 1601 Dixon Landing Road
Email: mpedhireny@littler.com Milpitas, CA 95035
Petitioner
(Legal Representatives) (Primary)
Adrian Barnes Larry Daugherty
Beeson Tayer & Bodine Business Representative
483 9th Street, Suite 200 Sanitary Truck Drivers and Helpers
Oakland, CA 94607 Local 350, IBT
Washington, D.C. 20005-2286 295 89th Street, Suite 304
Email: abarnes@beesontayer.com Daly City, CA 94015
Email: l.daugherty@ibtlocal350.com
NLRB Regional Office
William A. Baudler
Regional Director, Region 32
Oakland Federal Building
1301 Clay Street, Room 300-N
Oakland, CA 94612-5211
Email: NLRBRegion32@nlrb.gov
/s/ Gail S. Coleman
Attorney
Equal Employment Opportunity
Commission
131 M Street, NE, Room 5SW24L
Washington, DC 20507
(202) 663-4055
gail.coleman@eeoc.gov
[1] These facts are taken from the written opinion. The EEOC has not reviewed the underlying record.