N.L.R.B. v. Browning-Ferris Industries of Pennsylvania, Inc., BROWNING-FERRIS

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before SEITZ, Chief Judge, ROSENN, Senior Circuit Judge, and GARTH; GARTH
• Citation: 691 F.2d 1117
• Parties: 111 L.R.R.M. (BNA) 2748, 73 A.L.R.Fed. 597, 95 Lab.Cas. P 13,832 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.INDUSTRIES OF PENNSYLVANIA, INC., Respondent.
• Docket Number: BROWNING-FERRIS,No. 82-3022
• Decision Date: 28 October 1982

Page 1117

691 F.2d 1117 111 L.R.R.M. (BNA) 2748, 73 A.L.R.Fed. 597,
95 Lab.Cas. P 13,832 NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., Respondent. No. 82-3022. United States Court of Appeals,
Third Circuit. Argued Sept. 15, 1982.
Decided Oct. 28, 1982.

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John P. Coyle, (argued), Carol A. De Deo, Lawrence J. Song, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.

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James A. Prozzi (argued), Lubow & Prozzi, P. E., Pittsburgh, Pa., for respondent.

Before SEITZ, Chief Judge, ROSENN, Senior Circuit Judge, and GARTH, Circuit Judge.

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. Sec. 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

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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 reconciled. Copies are thereafter provided the brokers.

BFI establishes the speed limits at both the transfer station and landfill area and enforces compliance with the speed limits. BFI often specifies which of two available roads at the landfill is to be used by the drivers approaching and leaving the area. At the transfer station, BFI employees direct the trucks to specified loading areas and at the landfill, BFI employees direct the trucks to specific dumping areas.

All drivers must be approved by BFI before they are permitted to haul BFI trailers. That approval usually consists of on the job observation by BFI. If BFI determines that a driver is incapable of handling a tractor-trailer, the broker is notified and that driver is not permitted on the premises. BFI's managers also "criticize" drivers who arrive late at the transfer station, or leave early.

The ALJ also found as a fact, based on "credible testimony of drivers and brokers, unrefuted by [BFI] who did not offer testimony in this regard, ... that [BFI's] transfer plant manager, Moersch, on occasion effectively discharged and rehired drivers." Specifically, the ALJ found that:

(a) In July 1980, when driver Tully went home early with the tractor, Moersch said to him, "you can go home permanently ... yes, I am firing you" and told the broker he wanted another driver and that Tully "no longer was allowed on the property." Several days later, when Tully asked Respondent's Vice-President Curtis for his job back, Curtis stated there was no reason why he could not get his job back. When Moersch was informed, he told Tully to return to work the following day.

(b) In 1977, Moersch "fired" another driver, broker Anderson's son.

(c) On another occasion, when broker Anderson, driving his own tractor, left early, Moersch ordered him to report to his office the next day and there told him that neither the owner-operators nor the drivers were boss at the transfer station, but that he, Moersch, was.

(d) In February 1978, when driver Pontius improperly used a piece of Respondent's equipment to push his tractor and was accused of damaging the equipment, Moersch told broker Dietrich that Pontius was not allowed on the property. Moersch, when asked by Pontius for his job back, told him that he had gotten rid of one of the four bad apples; when told that Respondent's landfill manager Fazio had no objection to Pontius' return as a driver so long as he did not use Respondent's equipment, Moersch told Pontius that it was okay for him to return to work the following Monday.

(e) And, finally, on Sunday evening, August 24, 1980, Moersch telephoned driver Tully at home, telling him that his truck was "fired" and that he should not report in the following morning with the truck; he telephoned broker Anderson's wife at home, telling her that Respondent did not want the Anderson truck anymore and that "Tully's fired;" and he telephoned broker Buzy at home, telling

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him that driver McDeavitt was no longer allowed on Company property.

Opinion at App. 8a-9a.

Finally the ALJ noted two other incidents which he felt were indicative of the relations between BFI and the drivers:

In late August 1980, Vice-President Curtis asked a driver to erase obscenities from the side of [BFI]'s trailer, despite the fact that [BFI] had responsibility to clean the trailers. And, also in 1980, [BFI]'s controller Bright, under emergency conditions where garbage was strewn from an overloaded trailer at a state police station, asked a driver to assist him and other [BFI] employees in the cleanup operation. The driver refused, stating that it was not a part of his job.

(Opinion App. at 9a).

II.

On appeal, BFI presents two arguments. First, BFI argues that the Board applied the wrong legal standard for determining "joint employer" status. Second, BFI maintains that, when the standard which it urges upon this court is applied, the evidence does not support the conclusion that BFI...