Browning-Ferris Indus. of Cal., Inc. v. Nat'l Labor Relations Bd.

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.

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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

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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

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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.

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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.