National Labor Relations Act (NLRA or Act). FiveHy- Brand ...

1 NOTICE: This opinion is subject to formal revision before publication in the National Labor Relations Act (NLRA or Act). Five Hy- bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations board , Washington, Brand employees and two Brandt employees were dis- 20570, of any typographical or other formal errors so that corrections can charged after they engaged in work stoppages based on be included in the bound volumes. concerns involving wages, benefits, and workplace safe- Hy- Brand Industrial Contractors, Ltd.

2 And Brandt ty. We agree that the work stoppages constituted pro- Construction Co., as a single employer and/or tected concerted activity under Section 7 of the Act, and joint employers and Dakota Upshaw and David the discharges constituted unlawful interference with the Newcomb and Ron Senteras and Austin exercise of protected rights in violation of Section 8(a)(1). Hovendon and Nicole Pinnick. Cases 25 CA of the Act. 163189, 25 CA 163208, 25 CA 163297, 25 CA We agree with the judge that Hy- Brand and Brandt are 163317, 25 CA 163373, 25 CA 163376, 25 CA joint employers, but we disagree with the legal standard 163398, 25 CA 163414, 25 CA 164941, and 25 the judge applied to reach that finding.

3 The judge ap- CA 164945 plied the standard adopted by a board majority in December 14, 2017 Browning-Ferris Industries of California, Inc. d/b/a BFI. DECISION AND ORDER1 Newby Island Recyclery (Browning-Ferris).2 In Brown- ing-Ferris, the board majority held that, even when two BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE, entities have never exercised joint control over essential MCFERRAN, KAPLAN, AND EMANUEL. terms and conditions of employment, and even when any This case involves a judge's finding that two entities joint control is not direct and immediate, the two enti- Hy- Brand Industrial Contractors, Ltd.

4 (Hy- Brand ) and ties will still be joint employers based on the mere exist- Brandt Construction Co. (Brandt) are collectively joint ence of reserved joint control,3 or based on indirect employers and/or a single employer for purposes of the control4 or control that is limited and routine. 5 We find 1 On November 14, 2016, Administrative Law Judge Robert A. 2 362 NLRB No. 186 (2015), petition for review docketed Brown- Ringler issued the attached decision. Respondent Hy- Brand Industrial ing-Ferris Indus. of Cal. v. NLRB, No. 16-1028 ( Cir. filed Jan. 20, Contractors, Limited (Hy- Brand ) and Respondent Brandt Construction 2016).

5 Company (Brandt) (collectively the Respondents) jointly filed excep- 3 Prior to the board majority's decision in Browning-Ferris, joint- tions and supporting, answering, and reply briefs. The General Counsel employer status turned on whether two entities exercised joint control filed a limited cross-exception and supporting and answering briefs. over essential employment terms, and evidence that an entity had re- The National Labor Relations board has considered the decision and served the right to exercise such control would not result in joint- the record in light of the exceptions, cross-exception, and briefs and has employer status.

6 See, , Flagstaff Medical Center, 357 NLRB 659, decided to affirm the judge's rulings, findings, and conclusions only to 667 (2011) (citing AM Property Holding Corp., 350 NLRB 998, 1001. the extent consistent with this Decision and Order and to adopt the (2007)), enfd. in part 715 928 ( Cir. 2013). recommended Order as modified below. 4 Prior to Browning-Ferris, the board applying common law prin- The Respondents have excepted to some of the judge's credibility ciples held that the essential element when evaluating joint- findings. The board 's established policy is not to overrule an adminis- employer status was whether the putative joint employer's control trative law judge's credibility resolutions unless the clear preponder- over employment matters is direct and immediate.

7 Airborne Express, ance of all the relevant evidence convinces us that they are incorrect. 338 NLRB 597, 597 fn. 1 ( 2002) (emphasis added) (citing TLI, Inc., Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 362 271 NLRB 798 (1984)); see also Summit Express, Inc., 350 NLRB 592, (3d Cir. 1951). We have carefully examined the record and find no 592 fn. 3 (2007). Proof that a putative joint employer indirectly affect- basis for reversing the findings. ed the terms and conditions of employment of another employer's The Respondents argue that the judge improperly limited certain tes- employees was insufficient prior to Browning-Ferris.

8 An example of timony and erroneously excluded documents from evidence. Even indirect control would be an agreement between a supplier employer (a assuming the judge erred in these rulings, we find that the additional business that supplies Labor to other businesses) and a user employer (a evidence would not affect our disposition of this case. business that uses the Labor supplied by a supplier employer) specifying The General Counsel seeks a make-whole remedy that would in- a maximum total amount of reimbursable Labor costs. See CNN Ameri- clude consequential damages incurred by the discriminatees as a result ca, Inc.

9 , 361 NLRB 439, 472 (2014) (Member Miscimarra, concurring of the Respondents' unfair Labor practices. The relief sought would in part and dissenting in part). The contractual maximum for reimburs- require a change in board law. Having duly considered the matter, we able Labor costs, codetermined by the user and supplier, would not are not prepared at this time to deviate from our current remedial prac- directly establish the wage rates or fringe benefits of the supplier's tice. Accordingly, we decline to order this relief at this time. See, , employees, but it would have an indirect effect on the supplier employ- Laborers International Union of North America, Local Union No.

10 91 ees' wages and/or benefits when the supplier employer sets or negoti- (Council of Utility Contractors), 365 NLRB No. 28, slip op. at 1 fn. 2 ates them. (2017). 5 Before Browning-Ferris, the board held that joint-employer status There are no exceptions to the judge's application of King Soopers, would not result from control that was limited and routine. See, , Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 23 ( AM Property Holding Corp., 350 NLRB 998, 1001 (2007), order modi- Cir. 2017), regarding the appropriate treatment of search-for-work and fied 352 NLRB 279 (2008), supplemented 355 NLRB 721 (2010), enfd.