N.L.R.B. v. Solid Waste Services, Inc.

• Decision Date: 20 October 1994
• Docket Number: D,No. 490,490
• Parties: 147 L.R.R.M. (BNA) 2639, 129 Lab.Cas. P 11,205 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLID WASTE SERVICES, INC., doing business as J.P. Mascaro & Sons, Inc., Respondent. ocket 94-4056.
• Court: U.S. Court of Appeals — Second Circuit

Page 93

38 F.3d 93

147 L.R.R.M. (BNA) 2639, 129 Lab.Cas. P 11,205

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLID WASTE SERVICES, INC., doing business as J.P. Mascaro &

Sons, Inc., Respondent.

No. 490, Docket 94-4056.

United States Court of Appeals, Second Circuit.

Argued Oct. 13, 1994.

Decided Oct. 20, 1994.

Joseph Oertel, Washington, DC (Frederick L. Feinstein, Gen. Counsel, N.L.R.B., Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Peter Winkler, Supervisory Atty., Richard A. Cohen, Attorney, on the brief), for petitioner.

Mark S. Shiffman, Pittsburgh, PA (Jackson, Lewis, Schnitzler & Krupman, Pittsburgh, PA, on the brief), for respondent.

Before OAKES, KEARSE and PRATT, Circuit Judges.

PER CURIAM:

Petitioner National Labor Relations Board (the "Board") seeks enforcement of its order issued on November 24, 1993, requiring respondent Solid Waste Services, Inc. ("Solid"), principally to bargain with International Union of Operating Engineers, Local Union No. 832 (the "Union"), on the ground that Solid is a successor employer to Laidlaw Waste Systems ("Laidlaw"). Until January 1, 1992, Monroe County, New York ("County"), had a solid-waste-hauling contract with Laidlaw; Laidlaw was party to a collective bargaining agreement with the Union until December 31, 1991. As of January 1, 1992, Solid became the County's solid waste hauler and hired 13 of Laidlaw's employees. The Board found that Solid, which had a total of 19 employees, was a successor employee to Laidlaw and thus was required to bargain with the Union.

Solid opposes enforcement of the Board's order, arguing that the Board erred in finding that Solid was not a joint employer with Silvarole Trucking Company ("Silvarole"); the inclusion of the Silvarole employees as employees of Solid would have expanded the bargaining unit to such an extent that the 13 Laidlaw employees hired by Solid would not constitute a majority of that unit. For the reasons below, we grant enforcement of the Board's order.

A joint employer relationship may be found to exist where there is sufficient evidence that the respondent had immediate control over the other company's employees. See generally Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 138 (2d Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986). Relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision. See id. at 138-39. The Board's determination as to whether two entities are joint employers is "essentially a factual issue," Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898-99, 11 L.Ed.2d 849 (1964), and that determination cannot be disturbed if it is supported by substantial evidence in the record as a whole, see, e.g., International House v. NLRB, 676 F.2d 906, 912 (2d Cir.1982); 29 U.S.C. Sec. 160(e). "Substantial evidence" means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). Where the Board's special expertise is implicated, its findings are entitled to "a high degree of deference." Local 32B-32J Service Employees International Union v. NLRB, 982 F.2d 845, 851 (2d Cir.) (internal quotes omitted), cert....