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National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania Inc.

decided: October 28, 1982.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., RESPONDENT



ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Seitz, Chief Judge, Rosenn, Senior Circuit Judge and Garth, Circuit Judge.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge.

The sole issue on this appeal is whether Browning Ferris Industries of Pennsylvania, Inc. (BFI) is a "joint employer" within the meaning of the National Labor Relations Act (NLRA). Thus, we are required to define the standard to be utilized in making this determination.

The National Labor Relations Board (NLRB) determined that BFI was a "joint employer." It then held that BFI had engaged in unfair labor practices within the meaning of Section 8(a) (1) of the NLRA (29 U.S.C. ยง 158(a) (1)) when it fired three drivers jointly employed by the company and its trucking brokers. The Board ordered BFI, jointly with its brokers, to offer the discharged employees reinstatement to their former or to substantially equivalent positions, or, if such positions were not available, to place those employees on a preferential hiring list. Finally, BFI was ordered to make the employees whole for any loss of pay resulting from BFI's unlawful conduct, and to post an appropriate notice.

The Board's decision and order, which adopted the findings and conclusions of the administrative law judge (ALJ), is reported at 259 NLRB No. 21. The ALJ had concluded inter alia, that (1) BFI and the independent trucking brokers were "joint employers" of the discharged drivers and (2) that BFI interfered with, thwarted, and restrained the drivers in the exercise of their Section 7 rights to seek increased wages and benefits, by firing two and barring a third driver from BFI property.

We hold that the Board applied the proper standard in determining that BFI was a "joint employer." We further conclude that substantial evidence in the record as a whole supports the Board's findings and we therefore enforce the Board's order.

I.

BFI operates a refuse transfer site under contract with the City of Pittsburgh. City trucks haul refuse to the transfer site where BFI compacts the refuse and hauls it to a landfill area. BFI is required by law to transport the refuse to the landfill within 24 hours, or risk fines and cancellation of the contract. Although the City owns the land upon which the transfer station is located, BFI owns the compaction equipment and the trailers into which the compacted refuse is loaded. BFI employs bin loaders and other employees to operate this equipment.

BFI contracts with independent truckers, commonly referred to in the trade as "brokers," to furnish all tractors and all drivers to haul BFI's trailers between the transfer station and the landfill area. Pursuant to oral agreements, terminable at will by either party, brokers are compensated on a per load basis. BFI issues the brokers bi-monthly checks and the brokers pay the drivers. Neither BFI nor the brokers withhold taxes from the drivers' pay. BFI additionally provides coverage under its group medical plan for one driver per tractor. The decision as to which driver receives the coverage is made by the broker.

The drivers wear coveralls similar to those worn by some of BFI's other employees, with the company's name -- "BFI" -- on the front. BFI provides these coveralls and has them cleaned by a cleaning service that is also used by BFI for its other employees. None of the tractors bears any broker identification. The trailers, which the brokers' tractors haul, all bear the BFI logo.

BFI carries comprehensive insurance on its trailers, but requires the brokers to carry liability insurance, and the brokers are liable for safety violations related to their tractors. Brokers also pay for their own fuel and are responsible for repairs and maintenance of their tractors, which they purchase with no financial assistance from BFI. Brokers do no maintenance work on the BFI trailers they haul, and must seek special permission from the BFI plant manager, Bud Moersch, to unhook trailers in need of repair.

BFI, by posted notice at the transfer station, establishes the starting times for work; i.e., two shifts beginning at 6 a.m. and 6 p.m., six days a week. BFI notes that the hours of operation at the transfer site itself were set by the City, and could only be changed by the City in accordance with the pickup schedule of the City's refuse haulers. However, BFI continues to have the authority to set up the shifts to be worked within the authorized hours of operation.

The brokers schedule the drivers for particular shifts and frequently drive their own tractors without regard to shift. BFI is concerned only that tractors and drivers are available at the transfer station when there is refuse to be handled.

Because the brokers are compensated on a per load basis, load logs are maintained both by BFI and the drivers, on forms provided by BFI. The logs are turned over to BFI's office, where they are ...


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