HY-BRAND INDUSTRIAL CONTRACTORS, LTD AND BRANDT CONSTRUCTION, CO., SINGLE EMPLOYERS AND/OR JOINT EMP

National Labor Relations Board - Board Decisions

Dec 14, 2017

365 NLRB No. 156 (N.L.R.B. 2017)

365 NLRB No. 156
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hy-Brand Industrial Contractors, Ltd. and Brandt
Construction Co., as a single employer and/or
joint employers and Dakota Upshaw and David
Newcomb and Ron Senteras and Austin
Hovendon and Nicole Pinnick. Cases 25–CA–
163189, 25–CA–163208, 25–CA–163297, 25–CA–
163317, 25–CA–163373, 25–CA–163376, 25–CA–
163398, 25–CA–163414, 25–CA–164941, and 25–
CA–164945
December 14, 2017
DECISION AND ORDER1
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE,
MCFERRAN, KAPLAN, AND EMANUEL
This case involves a judge’s finding that two entities—
Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and
Brandt Construction Co. (Brandt)—are collectively joint
employers and/or a single employer for purposes of the

1 On November 14, 2016, Administrative Law Judge Robert A.
Ringler issued the attached decision. Respondent Hy-Brand Industrial
Contractors, Limited (Hy-Brand) and Respondent Brandt Construction
Company (Brandt) (collectively the Respondents) jointly filed excep-
tions and supporting, answering, and reply briefs. The General Counsel
filed a limited cross-exception and supporting and answering briefs.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions, cross-exception, and briefs and has
decided to affirm the judge’s rulings, findings, and conclusions only to
the extent consistent with this Decision and Order and to adopt the
recommended Order as modified below.
The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondents argue that the judge improperly limited certain tes-
timony and erroneously excluded documents from evidence. Even
assuming the judge erred in these rulings, we find that the additional
evidence would not affect our disposition of this case.
The General Counsel seeks a make-whole remedy that would in-
clude consequential damages incurred by the discriminatees as a result
of the Respondents’ unfair labor practices. The relief sought would
require a change in Board law. Having duly considered the matter, we
are not prepared at this time to deviate from our current remedial prac-
tice. Accordingly, we decline to order this relief at this time. See, e.g.,
Laborers International Union of North America, Local Union No. 91
(Council of Utility Contractors), 365 NLRB No. 28, slip op. at 1 fn. 2
(2017).
There are no exceptions to the judge’s application of King Soopers,
Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C.
Cir. 2017), regarding the appropriate treatment of search-for-work and
interim employment expenses. Accordingly, we do not revisit that
issue here.
National Labor Relations Act (NLRA or Act). Five Hy-
Brand employees and two Brandt employees were dis-
charged after they engaged in work stoppages based on
concerns involving wages, benefits, and workplace safe-
ty. We agree that the work stoppages constituted pro-
tected concerted activity under Section 7 of the Act, and
the discharges constituted unlawful interference with the
exercise of protected rights in violation of Section 8(a)(1)
of the Act.
We agree with the judge that Hy-Brand and Brandt are
joint employers, but we disagree with the legal standard
the judge applied to reach that finding. The judge ap-
plied the standard adopted by a Board majority in
Browning-Ferris Industries of California, Inc. d/b/a BFI
Newby Island Recyclery (Browning-Ferris).2 In Brown-
ing-Ferris, the Board majority held that, even when two
entities have never exercised joint control over essential
terms and conditions of employment, and even when any
joint control is not “direct and immediate,” the two enti-
ties will still be joint employers based on the mere exist-
ence of “reserved” joint control,3 or based on indirect
control4 or control that is “limited and routine.”5 We find

2 362 NLRB No. 186 (2015), petition for review docketed Brown-
ing-Ferris Indus. of Cal. v. NLRB, No. 16-1028 (D.C. Cir. filed Jan. 20,
2016).
3 Prior to the Board majority’s decision in Browning-Ferris, joint-
employer status turned on whether two entities exercised joint control
over essential employment terms, and evidence that an entity had “re-
served” the right to exercise such control would not result in joint-
employer status. See, e.g., Flagstaff Medical Center, 357 NLRB 659,
667 (2011) (citing AM Property Holding Corp., 350 NLRB 998, 1001
(2007)), enfd. in part 715 F.3d 928 (D.C. Cir. 2013).
4 Prior to Browning-Ferris, the Board—applying common law prin-
ciples—held that the “essential element” when evaluating joint-
employer status “was whether the putative joint employer’s control
over employment matters is direct and immediate.” Airborne Express,
338 NLRB 597, 597 fn. 1 ( 2002) (emphasis added) (citing TLI, Inc.,
271 NLRB 798 (1984)); see also Summit Express, Inc., 350 NLRB 592,
592 fn. 3 (2007). Proof that a putative joint employer indirectly affect-
ed the terms and conditions of employment of another employer’s
employees was insufficient prior to Browning-Ferris. An example of
indirect control would be an agreement between a supplier employer (a
business that supplies labor to other businesses) and a user employer (a
business that uses the labor supplied by a supplier employer) specifying
a maximum total amount of reimbursable labor costs. See CNN Ameri-
ca, Inc., 361 NLRB 439, 472 (2014) (Member Miscimarra, concurring
in part and dissenting in part). The contractual maximum for reimburs-
able labor costs, codetermined by the user and supplier, would not
directly establish the wage rates or fringe benefits of the supplier’s
employees, but it would have an indirect effect on the supplier employ-
ees’ wages and/or benefits when the supplier employer sets or negoti-
ates them.
5 Before Browning-Ferris, the Board held that joint-employer status
would not result from control that was “limited and routine.” See, e.g.,
AM Property Holding Corp., 350 NLRB 998, 1001 (2007), order modi-
fied 352 NLRB 279 (2008), supplemented 355 NLRB 721 (2010), enfd.
in relevant part sub nom. SEIU Local 32BJ v. NLRB, 647 F.3d 435 (2d
Cir. 2011). Supervision was found “limited and routine” where a su-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
that the Browning-Ferris standard is a distortion of
common law as interpreted by the Board and the courts,
it is contrary to the Act, it is ill-advised as a matter of
policy, and its application would prevent the Board from
discharging one of its primary responsibilities under the
Act, which is to foster stability in labor-management
relations.6 Accordingly, we overrule Browning-Ferris
and return to the principles governing joint-employer
status that existed prior to that decision. See, e.g., Air-
borne Express, 338 NLRB 597 (2002); TLI, Inc., 271
NLRB 798 (1984), enfd. mem. sub nom. General Team-
sters Local Union No. 26 v. NLRB, 772 F.2d 894 (3d Cir.
1985); and Laerco Transportation, 269 NLRB 324
(1984); see also Browning-Ferris, 362 NLRB No. 186,
slip op. at 21–50 (dissenting opinion of Members Misci-
marra and Johnson). By overruling Browning-Ferris,
we also make the Board’s treatment of joint-employer
status consistent with the holdings of numerous Federal
and state courts.7

pervisor’s instructions consisted primarily of telling employees what
work to perform, or where and when to perform it, but not how to per-
form it. G. Wes Ltd. Co., 309 NLRB 225, 226 (1992); see also AT&T v.
NLRB, 67 F.3d 446 (2d Cir. 1995) (“Limited and routine supervision,
without an ability to hire, fire, or discipline, cannot justify a finding of
joint employer status.”) (citing TLI, 271 NLRB at 799).
6 See Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363
(1949) (“To achieve stability of labor relations was the primary objec-
tive of Congress in enacting the National Labor Relations Act.”); NLRB
v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir. 1961) (A “basic
policy of the Act [is] to achieve stability of labor relations.”).
7 See, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th
Cir. 2009) (“A finding of the right to control employment requires . . . a
comprehensive and immediate level of ‘day-to-day’ authority over
employment decisions.”) (quoting Vernon v. State, 116 Cal. App. 4th
114, 10 Cal. Rptr. 3d 121, 132 (2004)); Gulino v. N.Y. State Educ.
Dep’t, 460 F.3d 361, 379 (2d Cir. 2006) (employment relationship must
involve a “level of control that is direct, obvious and concrete, not
merely indirect or abstract”); SEIU Local 32BJ v. NLRB, 647 F.3d 435,
442–443 (2d Cir. 2011) (“‘An essential element’ of any joint employer
determination is ‘sufficient evidence of immediate control over the
employees.’”) (quoting Clinton’s Ditch Co-op Co. v. NLRB, 778 F.2d
132, 138 (2d Cir. 1984)); Texas World Service Co. v. NLRB, 928 F.2d
1426, 1432 (5th Cir. 1991) (same); Pulitzer Publishing Co. v. NLRB,
618 F.2d 1275, 1280 (8th Cir. 1980) (holding that the Board erred in
finding a joint-employer relationship, distinguishing cases “where the
companies share direct supervision of the employees involved and
control hiring, firing, and disciplining”); see also NLRB v. Denver
Building & Construction Trades Council, 341 U.S. 675, 689–690
(1951) (holding that contractor’s supervision over 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,” emphasizing
that “[t]he business relationship between independent contractors is too
well established in the law to be overridden without clear language
doing so”).
Because we find that Hy-Brand and Brandt are joint
employers, we do not reach or pass on whether, in the
alternative, they constitute a single employer.8
I. OVERVIEW
The National Labor Relations Act (Act) establishes a
comprehensive set of rules for labor relations in this
country, and a primary function of the Board is to foster
compliance with those rules by employees, unions, and
employers. To comply with these rules as they have
grown and evolved over the last eight decades, substan-
tial planning is required. This is especially true in regard
to collective bargaining, a process that is central to the
Act. The Act’s bargaining obligations are formidable—
as they should be—and violations can result in signifi-
cant liability. When it comes to the duty to bargain, re-
sort to strikes or picketing, and even the basic question of
“who is bound by this collective-bargaining agreement,”
there is no more important issue than correctly identify-
ing who is the employer. Changing the test for identify-
ing the employer, therefore, has dramatic implications
for labor relations policy and its effect on the economy.
In Browning-Ferris, a Board majority rewrote the dec-
ades-old test for determining who is the employer. More
specifically, the majority redefined and expanded the test
that makes two separate and independent entities a “joint
employer” of certain employees. This change subjected
countless entities to unprecedented new joint bargaining
obligations that most may not even know they have, to
potential joint liability for unfair labor practices and
breaches of collective-bargaining agreements, and to
economic protest activity, including what have hereto-

8 The Board and the courts have distinguished between joint-
employer status on the one hand, and single-employer status on the
other. The hallmark characteristic of joint-employer status is the pres-
ence of two employer entities that are separate but deemed to be joint
employers because they jointly control essential employment terms. A
finding that two entities are joint employers “assumes in the first in-
stance that [the] companies are ‘what they appear to be’—independent
legal entities that have merely ‘historically chosen to handle jointly . . .
important aspects of their employer-employee relationship.’” NLRB v.
Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1122
(3d Cir. 1982) (emphasis added) (quoting NLRB v. Checker Cab Co.,
367 F.2d 692, 698 (6th Cir. 1966)). Thus, “the ‘joint employer’ con-
cept recognizes that the business entities involved are in fact separate
but that they share or co-determine those matters governing the essen-
tial terms and conditions of employment.” Id. at 1123 (emphasis in
original). By contrast, single-employer status arises when two enti-
ties—though supposedly distinct—are shown to be a single enterprise
based on (i) common ownership, (ii) common management, (iii) inter-
related operations, and (iv) centralized control of labor relations; of
these factors, common ownership is typically afforded the least weight,
and centralized control over labor relations the most weight. See Radio
& Television Broadcast Technicians Local 1264 v. Broadcast Service
of Mobile, Inc., 380 U.S. 255 (1965) (per curiam); South Prairie Con-
struction Co. v. Operating Engineers Local 627, 425 U.S. 800 (1976)
(per curiam).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 3
fore been unlawful secondary strikes, boycotts, and pick-
eting.
The Browning-Ferris majority was driven by a desire
to ensure that collective bargaining is not foreclosed by
business relationships that allegedly deny employees the
right to bargain with employers that share control over
essential terms and conditions of their employment.
However well-intentioned the majority’s decision in
Browning-Ferris might have been, there are five major
problems with that decision.
First, the Browning-Ferris test exceeds the Board’s
statutory authority. From the Browning-Ferris majori-
ty’s perspective, the change their decision wrought in the
joint-employer analysis was a necessary adaptation of
Board law to reflect changes in the national economy. In
making that change, they purported to operate within the
limits of traditional common law principles, and they
claimed to be returning to the law applied by the Board
prior to 1984. In actuality, however, the Browning-
Ferris majority relied on theories of “economic realities”
and “statutory purpose” that extended the definitions of
“employee” and “employer” far beyond the common law
limits that Congress and the Supreme Court have stated
must apply.9 The Browning-Ferris decision represented
a further expansion of changes in the law made in Fed-
Ex,10 which revised the Board’s longstanding definition
of independent contractor status in a way that will pre-
dictably extend the Act’s coverage to many individuals
previously considered to be excluded from that coverage
as independent contractors, and in CNN,11 which im-
posed after-the-fact joint-employer obligations contrary
to the parties’ 20-year bargaining history, applicable col-
lective-bargaining agreements (CBAs), relevant services
contracts, and the Board’s own prior union certifications.
Second, the Browning-Ferris majority’s rationale for
overhauling the Act’s definition of “employer”—i.e., to
protect bargaining from limitations resulting from the
absence from the table of third parties that indirectly af-
fect employment-related issues—relied in substantial
part on the notion that present conditions are unique to
our modern economy and represent a radical departure

9 The common law agency principles are also known as “master-
servant” principles in the older cases and literature, and these terms are
used interchangeably both in the doctrine and here.
10 FedEx Home Delivery, 361 NLRB 610 (2014), enf. denied 849
F.3d 1123 (D.C. Cir. 2017).
11 CNN America, Inc., 361 NLRB 439 (2014), enf. denied in relevant
part 865 F.3d 740 (D.C. Cir. 2017). In refusing to affirm the Board’s
joint-employer finding in CNN, the D.C. Circuit found that the Board
had failed to grapple with its precedents requiring a putative joint em-
ployer to have exercised “direct and immediate” control over another
employer’s employees’ essential terms and conditions of employment.
865 F.3d at 749–751.
from simpler times when labor negotiations were unaf-
fected by the direct employer’s commercial dealings with
other entities. However, such an economy has not exist-
ed in this country for more than 200 years.12 Many
forms of subcontracting, outsourcing, and temporary or
contingent employment date back to long before the
1935 passage of the Act. Congress was obviously aware
of the existence of third-party business relationships in
1935, when it limited bargaining obligations to the “em-
ployer”; in 1947, when it limited the definition of “em-
ployee” and “employer” to their common law agency
meaning; and in 1947 and 1959, when Congress
strengthened secondary boycott protection afforded to
third parties who, notwithstanding their dealings with the
employer, could not lawfully be required to suffer picket-
ing and other forms of economic coercion based on their
dealings with that employer.13 This is not mere conjec-
ture; it is the inescapable conclusion that follows from
Supreme Court precedent recognizing that the Act did
not confer “employer” status on third parties merely be-
cause commercial relationships made them interdepend-
ent with an employer and its employees.14
Third, courts have afforded the Board deference in this
context merely as to its drawing of factual distinctions
when applying the common law agency standard.15

12 If the Browning-Ferris majority desired to return to a time when
labor-management relations were insulated from third-party business
relationships and competitive pressures, they would need to go back to
our country’s origins. The work of labor economists John R. Commons
and Selig Perlman, who are perhaps the two most authoritative histori-
ans of the American labor movement, indicates that unions expanded
and contracted during the first centuries of economic development in
the United States, and the transition to national markets, combined with
unprecedented business competition, caused extensive labor-
management instability. See 1 John R. Commons, HISTORY OF
LABOUR IN THE UNITED STATES 25–30 (1918); Selig Perlman, A
HISTORY OF TRADE UNIONISM IN THE UNITED STATES 36–41 (1922);
see also Philip S. Foner, THE HISTORY OF THE LABOR MOVEMENT IN
THE UNITED STATES: FROM COLONIAL TIMES TO THE FOUNDING OF
THE AMERICAN FEDERATION OF LABOR 338–340 (1947).
13 See, e.g., Sec. 8(b)(4), 8(e).
14 See, e.g., NLRB v. Denver Building Trades Council, supra, 341
U.S. at 692 (holding that construction industry general contractors have
no employer relationship with the employees of subcontractors, not-
withstanding the general contractor’s responsibility for the entire pro-
ject). In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964), an employer contracted out its maintenance work and “merely
replaced existing employees with those of an independent contractor.”
Even though the subcontractor’s employees continued “to do the same
work under similar conditions of employment” and the “maintenance
work still had to be performed in the plant,” id. at 213, Fibreboard
ceased being the “employer.” Indeed, the premise of Fibreboard and
similar decisions is that the outsourcing of work may “quite clearly
imperil job security, or indeed terminate employment entirely” for
employees of the contracting employer. Id. at 223 (Stewart, J., concur-
ring).
15 The Supreme Court’s decision in Boire v. Greyhound Corp., 376
U.S. 473 (1964), speaks directly to the Board’s authority to make factu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
However, the Browning-Ferris majority mistakenly in-
terpreted this as a grant of authority to modify the agency
standard itself. It is not, and the change wrought in
Browning-Ferris is solely within the province of Con-
gress, not the Board. This was not the first time the
Board overstepped its limits in this area. Thus, in Yellow
Taxi Co. v. NLRB,16 Judge MacKinnon of the D.C. Cir-
cuit denounced the Board majority’s “thinly veiled defi-
ance” of controlling precedent regarding the “common
law rules of agency,” adding that “[n]o court can over-
look an agency’s defiant refusal to follow well estab-
lished law.” 721 F.2d at 382. The judge further ob-
served:
[T]he Board here is acting in an area where it is called
upon to apply common law principles that have been
established since 1800 and where the application of that
law under the National Labor Relations Act has been
declared by Congress and settled by the courts, includ-
ing the Supreme Court, for some 36 years. In this area,
there is no dispute as to the governing principles of
law; what is involved is the application of law to facts.
“[S]uch a determination of pure agency law involve[s]
no special administrative expertise that a court does not
possess.” NLRB v. United Ins. Co. of America, supra,
390 U.S. at 260.
Id. at 383 fn. 39. To be specific, we understand the com-
mon law standard as codified by the Act to require direct
control over one or more essential terms and conditions of
employment to constitute an entity the joint employer of
another entity’s employees. 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 rein-
forces evidence of direct control.17

al distinctions in applying the common law agency standard. The de-
termination of whether two entities are joint employers, said the Court,
“is essentially a factual issue.” Id. at 481.
16 721 F.2d 366 (D.C. Cir. 1983). See also NLRB v. Town & Coun-
try Electric, Inc., 516 U.S. 85, 94 (1995) (“ In some cases, there may be
a question about whether the Board’s departure from the common law
of agency with respect to particular questions and in a particular statu-
tory context, renders its interpretation unreasonable.”).
17 Our dissenting colleagues do not cite any court decision finding
that a company was a joint employer of another employer’s employees
based solely on the indirect effect of its business relationship on those
workers’ wages, hours, and other working conditions, much less a
sufficient body of cases that one could say rises to the level of the
common law. Nor does the dissent cite a body of cases finding that a
company was a joint employer based solely on the existence of a con-
Fourth, Browning-Ferris abandoned a longstanding
test that provided certainty and predictability, replacing it
with a vague and ill-defined standard that would have
resulted in the imposition of unprecedented bargaining
obligations on multiple entities in a wide variety of busi-
ness relationships, based solely on a never-exercised
right to exercise “indirect” control over what the Board
later decides is an “essential” employment term, to be
determined in litigation on a case-by-case basis. Thus,
the Browning-Ferris test deprived employees, unions,
and employers of certainty and predictability regarding
the identity of the “employer.” Just like the test of em-
ployee status rejected by the Supreme Court in Nation-
wide Mutual Insurance Co. v. Darden, 530 U.S. 318, 326
(1992), the Browning-Ferris joint-employer standard
constituted “an approach infected with circularity and
unable to furnish predictable results.” This confusion
and disarray threatened to cause substantial instability in
bargaining relationships, and it may have and certainly
would have resulted in substantial burdens, expense, and
liability for innumerable parties, including employees,
employers, unions, and countless entities that were cast
into legal limbo, with consequent delay, risk, and litiga-
tion expense.18
Fifth, to the extent that the Browning-Ferris majority
sought to correct a perceived inequality of bargaining
leverage resulting from complex business relationships
involving entities that do not participate in collective
bargaining, the inequality addressed therein was the
wrong target, and expanding collective bargaining to an
employer’s business partners was the wrong remedy. As
noted above, the inequality targeted by the Browning-
Ferris joint-employer test is a fixture of our economy.
Business entities enter into a variety of relationships, and
they have different interests and varying degrees of lev-
erage in their dealings with one another. There are con-
tractually more powerful business entities and less pow-
erful business entities, and all pursue their own interests.
The Board would need a clear congressional command—
and none exists here—before undertaking an attempt to
reshape this aspect of economic reality. The Act does
not redress imbalances of power between businesses,
even if those imbalances have some derivative effect on
employees. As Justice Stewart observed 50 years ago:
[I]t surely does not follow that every decision which
may affect job security is a subject of compulsory col-

tract clause reserving some never-exercised authority to the putative
joint employer over the workers’ terms and conditions of employment.
18 See, e.g., First National Maintenance Corp. v. NLRB, 452 U.S.
666, 678–679, 684–686 (1981), and other cases discussed in Part VI,
subpart B of this opinion, emphasizing the need for certainty, predicta-
bility and stability.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 5
lective bargaining. Many decisions made by manage-
ment affect the job security of employees. Decisions
concerning the volume and kind of advertising expend-
itures, product design, the manner of financing, and
sales, all may bear upon the security of the workers’
jobs. Yet it is hardly conceivable that such decisions so
involve “conditions of employment” that they must be
negotiated with the employees’ bargaining representa-
tive.
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. at 223
(Stewart, J., concurring); see also First National Mainte-
nance Corp. v. NLRB, 452 U.S. at 676 (In adopting the
NLRA, Congress “had no expectation that the elected union
representative would become an equal partner in the run-
ning of the business enterprise in which the union’s mem-
bers are employed.”). Dragging third parties into collective
bargaining wherever there is some interdependence between
or among those parties and an employer is much more likely
to thwart labor peace than advance it.
Indeed, on matters of economic power and relative in-
equality, the Board is not vested with “general authority
to define national labor policy by balancing the compet-
ing interests of labor and management.” American Ship
Building Co. v. NLRB, 380 U.S. 300, 316 (1965). “It is
implicit in the entire structure of the Act that the Board
acts to oversee and referee the process of collective bar-
gaining, leaving the results of the contest to the bargain-
ing strengths of the parties.” H. K. Porter Co. v. NLRB,
397 U.S. 99, 107–108 (1970). Therefore, we are certain-
ly not vested with general authority to shape national
economic policy by balancing the competing interests of
different business enterprises.
The Act encourages collective bargaining, but only be-
tween a labor organization and an employer regarding
the terms and conditions of employment of the employ-
er’s employees. Browning-Ferris extended this purpose
far beyond what Congress intended. In this respect,
Browning-Ferris fosters substantial bargaining instability
by requiring the nonconsensual presence of too many
entities with diverse and conflicting interests on the “em-
ployer” side of the table. Indeed, even the commence-
ment of good-faith bargaining could have been delayed
by disputes over whether the correct “employer” parties
were present. This predictable outcome is irreconcilable
with the Act’s overriding policy to “eliminate the causes
of certain substantial obstructions to the free flow of
commerce.”19
In sum, the Browning-Ferris majority opinion did not
represent a “return to the traditional test used by the
Board,” as the majority claimed even as they admitted

19 NLRA Sec. 1 (emphasis added).
that the Board had never before described or articulated
the test they announced. Rather, the Browning-Ferris
joint-employer test fundamentally altered the law appli-
cable to user-supplier, lessor-lessee, parent-subsidiary,
contractor-subcontractor, franchisor-franchisee, prede-
cessor-successor, creditor-debtor, and contractor-
consumer business relationships under the Act. In addi-
tion, because the commerce data applicable to joint em-
ployers is combined for jurisdictional purposes,20 the
Act’s coverage was extended to small businesses whose
separate operations and employees had not, until Brown-
ing-Ferris issued, been subject to Board jurisdiction. As
explained in detail below, we believe the Browning-
Ferris majority impermissibly exceeded the Board’s
statutory authority, misread and departed from prior case
law, and subverted traditional common law agency prin-
ciples. The result was a new test that confused the defi-
nition of a joint employer and threatened to produce
wide-ranging instability in bargaining relationships. It
did violence as well to other requirements imposed by
the Act, notably including the secondary-boycott protec-
tion that Congress affords to neutral employers. For all
these reasons, we return today to pre-Browning-Ferris
precedent. Thus, a finding of joint-employer status shall
once again require proof that putative joint employer
entities have exercised joint control over essential em-
ployment terms (rather than merely having “reserved”
the right to exercise control), the control must be “direct
and immediate” (rather than indirect), and joint-employer
status will not result from control that is “limited and
routine.”
II. THE JOINT-EMPLOYER TEST PRIOR TO BROWNING-FERRIS
The Act does not expressly define who is an employer,
whether joint or sole. In relevant part, Section 2(2) of
the Act states only that “[t]he term ‘employer’ includes
any person acting as an agent of an employer, directly or
indirectly.” In cases decided prior to 1984, both the
Board and the courts occasionally confused resolution of
the issue whether two entities were joint employers by,
among other things, blurring the distinction between the
test for determining single-employer status and the test
for determining joint-employer status.21 In two cases
decided in 1984—Laerco Transportation22 and TLI,
Inc.23—the Board clarified the law by expressly adopting
the joint-employer standard announced by the Court of
Appeals for the Third Circuit in NLRB v. Browning-
Ferris Indus. of Pennsylvania, Inc., 691 F.2d 1117, 1124

20 Valentine Properties, 319 NLRB 8 (1995).
21 See, e.g., Parklane Hosiery, 203 NLRB 597 (1973), amended 207
NLRB 991 (1973).
22 269 NLRB 324.
23 271 NLRB 798.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(3d Cir. 1982): “The basis of the [joint-employer] finding
is simply that one employer while contracting in good
faith with an otherwise independent company, has re-
tained for itself sufficient control of the terms and condi-
tions of employment of the employees who are employed
by the other employer. Thus, the ‘joint employer’ con-
cept recognizes that the business entities involved are in
fact separate but that they share or co-determine those
matters governing the essential terms and conditions of
employment.” Applying this test as to “essential terms”
in both Laerco and TLI, the Board stated it would focus
on whether an alleged joint employer “meaningfully af-
fects matters relating to the employment relationship
such as hiring, firing, discipline, supervision, and direc-
tion.”24
Both TLI and Laerco were cases applying the joint-
employer test to the relationship between a company
supplying labor to a company using that labor. The
Board found that evidence of the user employer’s actual
but “limited and routine” supervision and direction of the
supplier employer’s employees would not suffice to es-
tablish joint-employer status.25 Subsequently, in AM
Property Holding Corp., 350 NLRB at 1001, the Board
further explained that it has “generally found supervision
to be limited and routine where a supervisor’s instruc-
tions consist primarily of telling employees what work to
perform, or where and when to perform the work, but not
how to perform the work.”
In Airborne Express, 338 NLRB at 597 fn. 1, the
Board explained that under the joint-employer test, “[t]he
essential element in [the joint-employer] analysis is
whether a putative joint employer’s control over em-
ployment matters is direct and immediate.”26 Consistent
with this standard, in AM Property the Board found that
a contractual provision giving the user company (AM)
the right to approve hires by the supplier company (PBS)
to work at AM’s office building was not, standing alone,
sufficient to make AM a joint employer of those employ-
ees. Instead, “[i]n assessing whether a joint employer

24 Laerco, 269 NLRB at 325; TLI, 271 NLRB at 798.
25 Laerco, 269 NLRB at 326; TLI, 271 NLRB at 799. Laerco and
TLI were decided by different three-member panels of a Board then
comprised of four sitting members. As such, they collectively repre-
sented the unanimous opinion of the full Board at that time.
26 We note that, although concurring Member Liebman advocated
revisiting the joint-employer standard represented by TLI, she agreed
with the majority in Airborne that Board decisions applying this prece-
dent “have required that the joint employer’s control over these matters
be direct and immediate.” 338 NLRB at 597 fn. 1. Thus, the Brown-
ing-Ferris majority was mistaken in asserting that the requirement of
“direct and immediate control” stated in Airborne was a new addition
to the joint-employer test. Further, as we shall later explain, there is
ample precedent in the common law for this requirement predating
1984.
relationship exists, the Board does not rely merely on the
existence of such contractual provisions, but rather looks
to the actual practice of the parties.”27
The AM Property distinction between potential or re-
served authority and the actual exercise of authority is a
commonplace, well-established fixture in Board juris-
prudence. For example, in the Board’s single-employer
test, we have repeatedly required proof that “one of the
entities exercises actual or active control [as distin-
guished from potential control] over the day-to-day oper-
ations or labor relations of the other.”28 In other contexts
where a party bears the burden of proving that an entity
falls within a particular statutory definition, the Board
has repeatedly endorsed this evidentiary distinction, giv-
ing weight only to the actual exercise of authority or con-
trol.29
As discussed in Section IV below, the pre-Browning-
Ferris test, which we restore today, is fully consistent
with the common law agency principles that the Board
must apply in determining joint-employer status. Fur-
ther, as an administrative law judge has accurately sum-
marized, the test reflects a common-sense, practical un-
derstanding of the nature of contractual relationships in
our modern economy: “An employer receiving contract-
ed labor services will of necessity exercise sufficient
control over the operations of the contractor at its facility
so that it will be in a position to take action to prevent
disruption of its own operations or to see that it is obtain-
ing the services it contracted for. It follows that the ex-
istence of such control is not, in and of itself, sufficient
justification for finding that the customer-employer is a
joint employer of its contractor’s employees.”30

27 350 NLRB at 1000.
28 Mercy Hospital of Buffalo, 336 NLRB 1282, 1284 (2001). See al-
so, e.g., Dow Chemical Company, 326 NLRB 288 (1998); Gerace
Construction, Inc., 193 NLRB 645 (1971); Los Angeles Newspaper
Guild, Local 69, 185 NLRB 303, 304 (1970).
29 E.g., FedEx Home Delivery, 361 NLRB 610 (“The Board has been
careful to distinguish between actual opportunities, which allow for the
exercise of genuine entrepreneurial autonomy, and those that are cir-
cumscribed or effectively blocked by the employer.”); Pacific Lutheran
University, 361 NLRB 1404, 1427 (2014) (“In order for decisions in a
particular policy area to be attributed to the faculty, the party asserting
managerial status must demonstrate that faculty actually exercise con-
trol or make effective recommendations.”); Lucky Cab, 360 NLRB 271,
273 (2014) (“We reject, therefore, the judge’s reliance on ‘paper au-
thority’ set forth in the handbook, in light of the contrary evidence of
the road supervisors’ actual practice. Schnurmacher Nursing Home v.
NLRB, 214 F.3d 260, 265 (2d Cir. 2000), enfg. in relevant part 327
NLRB 253 (1998) (no authority to discipline, despite statement in job
description, where the alleged supervisors did not actually discipline or
recommend discipline).”).
30 Southern California Gas, 302 NLRB 456, 461 (1991).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 7
III. THE BROWNING-FERRIS JOINT-EMPLOYER TEST
The Browning-Ferris majority expressly overruled
TLI, Laerco, Airborne Express, AM Property, and related
precedent and purported to return to a joint-employer test
that allegedly applied prior to this line of precedent.
Their analysis began in a manner that was consistent
with prior precedent: “The Board may find that two or
more entities are joint employers of a single work force if
they are both employers within the meaning of the com-
mon law, and if they share or codetermine those matters
governing the essential terms and conditions of employ-
ment.” 362 NLRB No. 186, slip op. at 15. The “share or
codetermine” language is the general statement of the
joint-employer test in the Third Circuit’s 1982 Brown-
ing-Ferris decision that was adopted and applied by the
Board in both TLI and Laerco.
The Browning-Ferris majority went on to adopt TLI’s
and Laerco’s description of essential terms and condi-
tions of employment as “matters relating to the employ-
ment relationship such as hiring, firing, discipline, su-
pervision, and direction.” Id. (emphasis in Browning-
Ferris). If this was the extent of the majority’s holding
in Browning-Ferris, there would have been no need for
that majority to overrule precedent.
However, the Browning-Ferris majority made clear
that its new test expanded joint-employer status far be-
yond anything that had existed under then-current prece-
dent and, contrary to the majority’s claim, under prece-
dent predating TLI and Laerco. In a two-step progres-
sion, the first of which misleadingly depicted the limits
of common law, the Browning-Ferris majority removed
all limitations on what kind or degree of control over
essential terms and conditions of employment may be
sufficient to warrant a joint-employer finding. “We will
no longer require,” they announced,
that a joint employer not only possess the authority to
control employees’ terms and conditions of employ-
ment, but must also exercise that authority, and do so
directly, immediately, and not in a “limited and rou-
tine” manner. . . . The right to control, in the common-
law sense, is probative of joint-employer status, as is
the actual exercise of control, whether direct or indirect.
362 NLRB No. 186, slip op. at 15–16. Moreover, the
Browning-Ferris test evaluated the exercise of control by
construing “share or codetermine” broadly:
In some cases (or as to certain issues) employers may
engage in genuinely shared decision-making, e.g., they
confer or collaborate to set a term of employment. . . .
Alternatively, employers may exercise comprehensive
authority over different terms and conditions of em-
ployment. For example, one employer sets wages and
hours, while another assigns work and supervises em-
ployees. . . . Or employers may affect different compo-
nents of the same term, e.g. one employer defines and
assigns work tasks, while the other supervises how
those tasks are carried out. . . . Finally, one employer
may retain the contractual right to set a term or condi-
tion of employment.
Id., slip op. at 15 fn. 80 (emphasis added).
The Browning-Ferris majority conceded that “it is cer-
tainly possible that in a particular case, a putative joint
employer’s control might extend only to terms and con-
ditions of employment too limited in scope or signifi-
cance to permit meaningful collective bargaining.” Id.,
slip op. at 16. However, the majority failed to provide
any guidance as to what degree of control, under what
circumstances, would be insufficient to establish joint-
employer status.
Several conclusions follow from the Browning-Ferris
majority’s reasoning and the decision to overrule prior
Board precedent regarding joint-employer status.
First, under Browning-Ferris, the Board in any particu-
lar case could find joint-employer status based on evi-
dence involving virtually any aspect of employment, and
the Board could decide to give dispositive weight to an
entity’s “reserved” or “indirect” control over any essen-
tial term and condition of employment of another entity’s
employees.
Second, there was no requirement that control over any
essential employment term be “direct and immediate” in
order to be probative and potentially determinative of
joint-employer status. Under Browning-Ferris, indirect
control, even a power reserved by contract but never ex-
ercised, would be considered and could suffice, standing
alone, to find joint-employer status.
Finally, while the Browning-Ferris majority purported
to base its standard on the common law and sufficient
control “to permit meaningful collective bargaining,” id.,
slip op. at 16, it was possible that even the occasional
limited and routine discussion or collaboration about a
single essential term of employment would have sufficed
to establish joint-employer status under the Browning-
Ferris standard. The Browning-Ferris majority repeat-
edly stated that almost every aspect of a business rela-
tionship could be probative, but it provided no signifi-
cant guidance as to what may or should be determinative.
The Browning-Ferris test represented a major depar-
ture from precedent. When applied, it placed the Board
in the position of passing on details regarding business
relationships that have no direct bearing on what actually
occurs in the workplace, and which may be unknown to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
employees or even the employer entities themselves.
Nor is there any discernible limit on the Browning-Ferris
majority’s open-ended, multifactor standard, which is an
analytical grab bag from which any scrap of evidence—
regarding indirect control or incidental collaboration as
to any aspect of work—could suffice to prove that multi-
ple entities collectively comprise a joint employer,
whether they numbered two or two dozen.
IV. BROWNING-FERRIS DISTORTED THE COMMON LAW
AGENCY TEST AND ADOPTED THE CONGRESSIONALLY-
REJECTED “ECONOMIC REALITY” AND “BARGAINING
INEQUALITY” THEORIES.
A. The Implicit Reliance of Browning-Ferris on Eco-
nomic Reality and Statutory Purpose Theory Directly
Contravened Congressional Intent.
The threshold problem—an insurmountable one—with
Browning-Ferris’s reformulated joint-employer test was
that it far exceeded the limits of the Board’s statutory
authority.31 Indeed, it was the third in a series of cases in
which the Board tested or exceeded those limits by dra-
matically expanding “employer” and “employee” status.
In FedEx Home Delivery, 361 NLRB 610 (2014), enf.
denied 849 F.3d 1123 (D.C. Cir. 2017), the majority
claimed to be applying the common law when it broad-
ened the Act’s definition of “employee,” which (based
on language added in 1947 as part of the Taft-Hartley
amendments) explicitly excludes any “independent con-
tractor.”32 In altering the analysis for distinguishing em-
ployees from independent contractors, the majority dis-
torted the common-law test to emphasize the perceived
economic dependency of the putative employee on the
putative employer. Member Johnson’s dissent explained
that the majority’s treatment of “employee” and “inde-
pendent contractor” status in FedEx was contrary to the
Act and its legislative history, and the majority’s factual
findings were contrary to the record. Unsurprisingly, the
D.C. Circuit rejected the Board’s decision.
In CNN America, Inc., 361 NLRB 439 (2014), enf. de-
nied in relevant part 865 F.3d 740 (D.C. Cir. 2017), the
majority found that a client, CNN, was a joint employer
of technical employees supplied by a contractor, TVS,
although CNN undisputedly had no direct role in hiring,

31 The Browning-Ferris majority cited the following passage from
American Trucking Assns. v. Atchison, T. & S.F. Ry. Co., 387 U.S. 397,
416 (1967), purporting to justify the change in the joint-employer
standard: “[Regulatory agencies] are supposed, within the limits of the
law and of fair and prudent administration, to adapt their rules and
practices to the Nation’s needs in a volatile, changing economy.” 362
NLRB No. 186, slip op. at 1 (emphasis added). As hereafter discussed,
the change in the joint-employer standard was neither within the limits
of the law nor representative of fair and prudent administration.
32 Sec. 2(3).
firing, disciplining, discharging, promoting, or evaluating
TVS’ employees, and CNN’s “employer” status was con-
trary to collective-bargaining agreements between TVS
and the union that represented TVS’ employees, the ser-
vices agreement entered into between CNN and TVS,
two decades of bargaining history and CBAs (all identi-
fying the contractor as the only employer), and prior un-
ion certifications by the Board. The Board majority in
CNN, though ostensibly applying the traditional joint-
employer test, relied on factors similar to those later em-
phasized by the Browning-Ferris majority (e.g., finding
that CNN’s services agreement gave it “considerable
authority” over “staffing levels”). Then-Member Misci-
marra’s dissent in CNN explained that the Board and the
courts had long dealt with situations where contractor
employees work at client locations, with substantial in-
teraction between the client and contracting employer,
without conferring joint-employer status on the client.
CNN America, Inc., slip op. at 28, 31–32 (citing NLRB v.
Denver Building Trades Council, supra, 341 U.S. at 692;
Fibreboard Paper Products Corp. v. NLRB, supra, 379
U.S. at 203 (other citations omitted)). Once again, the
D.C. Circuit denied enforcement of the Board’s decision
in relevant part, sharply criticizing the CNN Board ma-
jority for “casually ignor[ing]” the longstanding direct-
and-immediate-control standard for determining joint-
employer status and for its “silence in the face of incon-
venient precedent.” NLRB v. CNN America, 865 F.3d at
751 (internal quotations omitted).
In Browning-Ferris, the majority abandoned the veiled
attempt to remake joint-employer law, which had been
strained beyond its rational breaking point in CNN. In-
stead, similar to what was done in FedEx for the defini-
tion of a statutory employee, the majority announced a
new test of joint-employer status that, notwithstanding
adamant disclaimers, effectively resurrected and relied,
at least in substantial part, on intertwined theories of
“economic realities” and “statutory purpose” endorsed by
the Supreme Court in NLRB v. Hearst Publications, 322
U.S. 111 (1944), which Congress expressly rejected in
the Taft-Hartley Amendments of 1947. In Hearst, the
Court applied the same rationale for the definitions of
employee and employer under the original Wagner Act:
To eliminate the causes of labor disputes and industrial
strife, Congress thought it necessary to create a balance
of forces in certain types of economic relationships.
These do not embrace simply employment associations
in which controversies could be limited to disputes over
proper ‘physical conduct in the performance of the ser-
vice.’ On the contrary, Congress recognized those
economic relationships cannot be fitted neatly into the
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 9
containers designated ‘employee’ and ‘employer’
which an earlier law had shaped for different purposes.
Its Reports on the bill disclose clearly the understand-
ing that ‘employers and employees not in proximate re-
lationship may be drawn into common controversies by
economic forces, and that the very disputes sought to
be avoided might involve ‘employees (who) are at
times brought into an economic relationship with em-
ployers who are not their employers.’ In this light, the
broad language of the Act’s definitions, which in terms
reject conventional limitations on such conceptions as
‘employee,’ ‘employer,’ and ‘labor dispute,’ leaves no
doubt that its applicability is to be determined broadly,
in doubtful situations, by underlying economic facts ra-
ther than technically and exclusively by previously es-
tablished legal classifications.33
In reaction to Hearst, Congress expressly excluded
“independent contractors” from the Act’s definition of a
statutory employee in the Taft-Hartley Amendments of
1947. The purpose of this revision was manifest in the
legislative history of the Amendments and repeatedly
acknowledged thereafter by the Supreme Court, which
stated in one case that
[in Hearst] the standard was one of economic and poli-
cy considerations within the labor field. Congressional
reaction to this construction of the Act was adverse and
Congress passed an amendment specifically excluding
‘any individual having the status of an independent
contractor’ from the definition of ‘employee’ contained
in s 2(3) of the Act. The obvious purpose of this
amendment was to have the Board and the courts apply
general agency principles in distinguishing between
employees and independent contractors under the Act. .
. . Thus there is no doubt that we should apply the
common law agency test here in distinguishing an em-
ployee from an independent contractor.34
The Browning-Ferris majority nevertheless clung to
the notion that economic and policy considerations may
determine the definition of employee and employer.
Even assuming that may be true in some cases not deal-
ing with the right to control under the common law,35 the
Supreme Court squarely rejected reliance on these con-
siderations in Darden, stating that

33 322 U.S. at 128–129. See also United States v. Silk, 331 U.S. 704
(1947), applying the same “economic realities” and “statutory purpose”
theories to the definition of “employee” under the Social Security Act.
34 NLRB v. United Insurance Co. of America, 390 U.S. 254, 256
(1968). See also Boire v. Greyhound, supra, 376 U.S. at 481 fn. 10;
Nationwide Mutual Insurance Co. v. Darden, supra, 503 U.S. at 324.
35 See, e.g., Allied Chemical & Alkali Workers, Local Union No. 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 168 (1971).
Hearst and Silk, which interpreted “employee” for pur-
poses of the National Labor Relations Act and Social
Security Act, respectively, are feeble precedents for
unmooring the term from the common law. In each
case, the Court read “employee,” which neither statute
helpfully defined, to imply something broader than the
common-law definition; after each opinion, Congress
amended the statute so construed to demonstrate that
the usual common-law principles were the keys to
meaning. . . . To be sure, Congress did not, strictly
speaking, “overrule” our interpretation of those stat-
utes, since the Constitution invests the Judiciary, not
the Legislature, with the final power to construe the
law. But a principle of statutory construction can en-
dure just so many legislative revisitations, and Reid’s
presumption that Congress means an agency law defi-
nition for “employee” unless it clearly indicates other-
wise signaled our abandonment of Silk’s emphasis on
construing that term “‘in the light of the mischief to be
corrected and the end to be attained.’”
503 U.S. at 324–325 (footnote and citations omitted).
Accordingly, the inescapable conclusion to be drawn
from the Taft-Hartley legislation repudiating the Hearst
opinion is that Congress must have intended that com-
mon law agency principles, rather than the Browning-
Ferris majority’s much more expansive policy-based
“economic realities” and “statutory purpose” approach,
govern the definition of employer as well as employee
under the Act. Even if Congress had not been so clear,
“it is . . . well established that ‘[w]here Congress uses
terms that have accumulated settled meaning under . . .
the common law, a court must infer, unless a statute oth-
erwise dictates, that Congress means to incorporate the
established meaning of these terms.’” Community for
Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)
(quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329
(1981)). Thus, the Browning-Ferris majority’s joint-
employer test is invalid because it does not comport with
common law agency principles.
Notwithstanding the legislative repudiation of Hearst,
the majority in Browning-Ferris expanded the definition
of employer by redefining the joint-employer doctrine in
unstated—but unmistakable—reliance on the rationale of
Hearst.36 The majority there was motivated by a policy

36 An unacknowledged antecedent for the joint-employer theory
adopted in Browning-Ferris was the concurring opinion of then-
Member Liebman in Airborne Express, supra, 338 NLRB at 597–599,
who contended that “[g]iven business trends driven by accelerating
competition, highlighted by this case, the Board’s joint-employer doc-
trine may no longer fit economic realities.” See also AM Property
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
concern that an imbalance of leverage in commercial
dealings between undisputed employers and third-party
entities prevents “meaningful bargaining” over each term
and condition of employment and is therefore in conflict
with the statutory policy of encouraging collective bar-
gaining. That approach reflected a desire to ensure that
third parties with “deep pockets” become participants in
existing or new bargaining relationships, and that they
would also be directly exposed to strikes, boycotts and
other economic weapons, based on the most limited and
indirect signs of potential control.37 Whether that was
good or bad policy—and we think it was bad for numer-
ous reasons discussed below—this fundamental balanc-
ing of interests has already been done by Congress. And
the simple fact is that Congress has forbidden the Board
from applying an economic realities or statutory purpose
rationale in defining employer and joint-employer status
under the Act.
B. The Browning-Ferris Test Does Not Comport with
Common Law Agency Principles.
The Browning-Ferris majority did not acknowledge
the Congressional rejection of Hearst’s economic reali-
ties theory for defining “employee” and “employer” un-
der the Act. Neither did they acknowledge their implicit
reliance on this theory in announcing a new joint-
employer test. Instead, they attempted to persuade that
their test of joint-employer status was consistent with
common-law agency’s master-servant doctrine. Their
attempt failed.
The “touchstone” at common law is whether the puta-
tive employer sufficiently controls or has the right to
control putative employees. See Clackamas Gastroen-
terology Associates, P.C. v. Wells, 538 U.S. 440, 448–
449 (2003); Restatement (Second) of Agency §§ 2, 220
(1958). Without attribution, the Browning-Ferris majori-
ty asserted that the common law considers as potentially
dispositive not only direct control, but also indirect con-

Holding Co., supra, 350 NLRB at 1012 (Member Liebman, concurring
in part and dissenting in part).
37 See Michael Harper, Defining the Economic Relationship Appro-
priate for Collective Bargaining, 39 Boston College L. Rev. 329, 348
(1998) (“[I]f workers are to be assured the opportunity to utilize collec-
tive bargaining leverage to extract a greater share of the returns from
their labor, they must be able to bargain with the firms that provide the
capital.”); see also Craig Becker, Labor Law Outside the Employment
Relation, 74 Texas L. Rev. 1527 (1996) (“At bottom, my intent is to
inquire how the principles of labor law might be freed from the limits
of outmoded definitions of the employment relationship. That effort
involves questioning the sanctity of the doctrine of privity of contract
as well as departing from the common-law paradigm of master-servant
as foundations for rights and duties in the workplace. Above all, it
requires rethinking the nature of power at stake in labor relations so as
to bring legal doctrine in line with contemporary economic realities.”)
(emphasis added).
trol and even reserved control that has never been exer-
cised. 362 NLRB No. 186, slip op. at 15–16. They jetti-
soned the joint-employer test’s requirement of evidence
that the putative employer’s control be direct and imme-
diate. Id. As explained below, however, “control” under
common-law principles requires some direct and imme-
diate control even where indirect-control factors are
deemed probative. The Act, with its incorporation of the
common law, does not allow the Board to broaden the
standard to include indirect control or an inchoate right
to exercise control, standing alone, as a dispositive fac-
tor, which the Browning-Ferris majority did.
Long before Congress anchored “employer” in the
common law, courts applying those principles focused on
discerning whether the putative master had control over
the details of the work (master) or only the results to be
achieved (not master). See, e.g., Singer Mfg. Co. v.
Rahn, 132 U.S. 518, 522 (1889) (“[T]he relation of mas-
ter and servant exists whenever the employer retains the
right to direct the manner in which the business shall be
done, as well as the result to be accomplished, or, in oth-
er words, ‘not only what shall be done, but how it shall
be done’” (quoting Railroad Co. v. Hanning, 82 U.S.
649, 657 (1872).). Further, the Supreme Court, for more
than a century, has adhered to the proposition that “under
the common law loaned-servant doctrine immediate con-
trol and supervision is critical in determining for whom
the servants are performing services.”38 Lower courts as
well implicitly limited their analysis to looking for direct
and immediate control. See, e.g., Dimmitt-Rickhoff-
Bayer Real Estate Co. v. Finnegan, 179 F.2d 882 (8th
Cir. 1950) (attaching no importance to indirect control in
finding real estate agents were not employees), cert. de-
nied 340 U.S. 823 (1950); Glenn v. Standard Oil Co.,
148 F.2d 51 (6th Cir. 1945) (attaching no importance to
indirect control in finding operators of Standard Oil’s
bulk distribution plants were not employees); Spillson v.
Smith, 147 F.2d 727 (7th Cir. 1945) (attaching no im-
portance to indirect control in finding the musicians of an
orchestra were the employees of its leader, not of the
restaurant where they played).
As courts undoubtedly realized, anyone contracting for
services, master or not, inevitably will exert and/or re-
serve some measure of indirect control by defining the
parameters of the result desired to ensure that the benefit
of the bargain is obtained. For example, in a case apply-

38 Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 6 (1963), citing
and applying the analysis in Standard Oil Co. v. Anderson, 212 U.S.
215 (1909). See also Kelly v. Southern Pacific Co., 419 U.S. 318, 329–
330 (1974), cited with approval in Community for Creative Non-
Violence v. Reid, 490 U.S. at 739–740, and in Nationwide Mutual In-
surance Co. v. Darden, 503 U.S. at 323.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 11
ing common-law principles and finding, under the Social
Security Act, that a production company was not the em-
ployer of the performers in vaudeville acts, Judge
Learned Hand wrote that
[i]n the case at bar the plaintiff did intervene to some
degree; but so does a general building contractor inter-
vene in the work of his subcontractors. He decides
how the different parts of the work must be timed, and
how they shall be fitted together; if he finds it desirable
to cut out this or that from the specifications, he does
so. Some such supervision is inherent in any joint un-
dertaking, and does not make the contributing contrac-
tors employees. By far the greater part of [the putative
employer’s] intervention in the ‘acts’ was no more than
this. It is true, as we have shown, that to a very limited
extent he went further, but these interventions were
trivial in amount and in character; certainly not enough
to color the whole relation.
Radio City Music Hall Corp. v. United States, 135 F.2d 715,
717–718 (2d Cir. 1943).
The Supreme Court subsequently addressed the same
point in construing the scope of the Act’s prohibition of
coercive secondary activity against neutral construction
employers by unions:
We agree with the Board also in its conclusion that the
fact that the contractor and subcontractor were engaged
on the same construction project, and that the contrac-
tor had some supervision over the subcontractor’s
work, did not eliminate the status of each as an inde-
pendent contractor or make the employees of one the
employees of the other. The business relationship be-
tween independent contractors is too well established in
the law to be overridden without clear language doing
so.39
To aid in applying this well-established common law
for employer-employee relationships, the Supreme Court
largely adopted the Restatement (Second) of Agency §
220’s nonexhaustive list of factors to be considered.
Community for Creative Non-Violence v. Reid, 490 U.S.
at 751–752; see also Nationwide Mutual Insurance Co. v.
Darden, 503 U.S. at 323–324. The Reid Court wrote:
In determining whether a hired party is an employee
under the general common law of agency, we consider
the hiring party’s right to control the manner and means
by which the product is accomplished. Among the oth-
er factors relevant to this inquiry are the skill required;

39 NLRB v. Denver Building and Construction Trades Council, su-
pra, 341 U.S. at 689–690 (1951) (emphasis added).
the source of the instrumentalities and tools; the loca-
tion of the work; the duration of the relationship be-
tween the parties; whether the hiring party has the right
to assign additional projects to the hired party; the ex-
tent of the hired party’s discretion over when and how
long to work; the method of payment; the hired party’s
role in hiring and paying assistants; whether the work is
part of the regular business of the hiring party; whether
the hiring party is in business; the provision of employ-
ee benefits; and the tax treatment of the hired party.
Reid, 490 U.S. at 751–752. These factors provide useful
indicia of the putative employer’s direct and immediate
control, or its right to exercise such control.
The comments to Section 220 of the Restatement clari-
fy that the listed factors are not concerned with indirect
control. Comment j, on the duration of the relationship,
provides: “If the time of employment is short, the worker
is less apt to subject himself to control as to details and
the job is more likely to be considered his job than the
job of the one employing him” (emphasis added). Com-
ment k, on the source of the instrumentalities and tools,
states it is understandable that the owner would regulate
such instrumentalities because “if the worker is using his
employer’s tools or instrumentalities, especially if they
are of substantial value, it is normally understood that he
will follow the direction of the owner in their use” (em-
phasis added). Comment l, on the location of work,
states that although the putative employer’s control of the
location of work usually raises an inference of employer
status, “[i]f . . . the rules are made only for the general
policing of the premises, as where a number of separate
groups of workmen are employed in erecting a building,
mere conformity to such regulations does not indicate
that the workmen are” employees of the entity that con-
trols the property.
More recently, courts applying the common law have
continued to make it unmistakably clear that employer
status requires sufficient proof of direct and immediate
control. For example, in finding that the New York State
Education Department (SED) was not the employer of
teachers under Title VII, the Court of Appeals for the
Second Circuit wrote: “[The common-law standard] fo-
cuses largely on the extent to which the alleged master
has ‘control’ over the day-to-day activities of the alleged
‘servant.’ The Reid factors countenance a relationship
where the level of control is direct, obvious, and con-
crete, not merely indirect or abstract. . . . Plaintiffs in
this case could not establish a master-servant relationship
under the Reid test. [The SED] does have some control
over New York City school teachers—e.g., it controls
basic curriculum and credentialing requirements—but
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
SED does not exercise the workaday supervision neces-
sary to an employment relationship.” Gulino v. N.Y.
State Education Department, 460 F.3d 361, 379 (2d Cir.
2006) (emphasis added), cert. denied 554 U.S. 917
(2008). Similarly, the Court of Appeals for the Ninth
Circuit, applying common-law principles, found that
Wal-Mart was not the joint employer of its suppliers’
employees where Wal-Mart did not have the right to an
“immediate level of ‘day-to-day’ control” over those
employees. Doe I v. Wal-Mart Stores, Inc., 572 F.3d
677, 682–683 (9th Cir. 2009) (quoting Vernon v. State,
10 Cal. Rptr. 3d 121 (Cal. Ct. App. 2004)). A few years
later, the Supreme Court of California used similar lan-
guage in finding a franchisor not liable under the Cali-
fornia Fair Employment and Housing Act for a franchi-
see supervisor’s harassment of an employee:
“[T]raditional common law principles of agency and
respondeat superior supply the proper analytical frame-
work . . . . This standard requires ‘a comprehensive and
immediate level of “day-to-day” authority’ over matters
such as hiring, firing, direction, supervision, and disci-
pline of the employee.” Patterson v. Domino’s Pizza,
LLC, 333 P.3d 723, 740 (Cal. 2014) (quoting Vernon,
supra).40
Contrary to the Browning-Ferris majority’s characteri-
zation, the above-quoted language from Gulino and Wal-
Mart cannot be dismissed as meaningless statements
made “in cases where there was little if any relevant evi-
dence of control of any sort.” 362 NLRB No. 186, slip

40 In TLI, supra, 271 NLRB at 798, the Board stated that “there must
be a showing that the employer meaningfully affects matters relating to
the employment relationship such as hiring, firing, discipline, supervi-
sion, and direction.” We read that passage to provide a nonexclusive
list of direct-and-immediate-control factors to consider, and hereafter
we discuss cases decided after TLI that did examine factors other than
those enumerated in that case. However, evidence of control over the
specific factors referred to in TLI is usually most relevant to the joint-
employer analysis. It is no coincidence that the Supreme Court of
California used a similar list in Patterson, as did the Ninth Circuit in
EEOC v. Pacific Maritime Association, 351 F.3d 1270 (9th Cir. 2003).
Discussing the Supreme Court’s Clackamas decision in this Title VII
case, the Ninth Circuit stated:
The Supreme Court seems to suggest that the sine qua non of deter-
mining whether one is an employer is that an “employer can hire and
fire employees, can assign tasks to employees and supervise their per-
formance.” Logically, before a person or entity can be a joint em-
ployer, it must possess the attributes of an employer to some degree.
Numerous courts have considered the key to joint employment to be
the right to hire, supervise and fire employees.
Id. at 1277. The Board’s task is to weigh all of the incidents of the relation-
ship to determine the sufficiency of the control, and that analysis necessarily
includes qualitative assessments of the general significance of specific fac-
tors. The Browning-Ferris test discarded this safeguard against overinclu-
sion in favor of finding any sporadic evidence or tangential effect on work-
ing conditions to be potentially sufficient to prove joint-employer status.
op. at 17 fn. 94. This statement begged the question why
either court felt the need to specifically mention the ab-
sence of immediate control. While Patterson was decid-
ed under a California statute, the Browning-Ferris major-
ity failed to acknowledge that the court’s opinion there
was founded on “traditional common law principles of
agency and respondeat superior.”41 The salient point is
that the cases we cite indicate that evidence of direct and
immediate control is essential to a finding of joint-
employer status under the common law. By contrast, the
Browning-Ferris majority did not and could not cite a
single judicial opinion that even implicitly affirms its
concededly novel two-step alternative common law test
or the proposition that a finding of a joint-employer rela-
tionship under the common law can be based solely on
indirect control.
In re Enterprise Rent-A-Car Wage & Employment
Practices Litigation, 683 F.3d 462, 468–469 (3d Cir.
2012), provides a useful contrast between the common
law test of joint-employer status and the economic reali-
ties test that Congress authorized by the unique language
of the Fair Labor Standards Act (FLSA), but rejected in
the Taft-Hartley Amendments of the NLRA. With re-
spect to the economic realities test, the Third Circuit stat-
ed:
When determining whether someone is an employee
under the FLSA, “economic reality rather than tech-
nical concepts is to be the test of employment.” Gold-
berg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33,
81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (internal quotation
marks omitted). Under this theory, the FLSA defines
employer “expansively,” Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117
L.Ed.2d 581 (1992), and with “striking breadth.”
Rutherford Food Corp. v. McComb, 331 U.S. 722, 730,
67 S.Ct. 1473, 91 L.Ed. 1772 (1947). The Supreme
Court has even gone so far as to acknowledge that the
FLSA’s definition of an employer is “the broadest def-

41 The Browning-Ferris majority also distinguished Patterson on the
ground that it involved “the particularized features of franchi-
sor/franchisee relationships, none of which are applicable here.” 362
NLRB No. 186, slip op. at 17 fn. 94. As we state elsewhere in this
decision, prior to Browning-Ferris the Board had maintained a unitary
joint-employer test for all types of employer relationships. The sugges-
tion that the test would vary from one type of relationship to another
was unprecedented and certainly had no foundation in the common law.
Moreover, before the Board’s decision in Browning-Ferris even issued,
the General Counsel had already thrown this distinction overboard in
the McDonald’s litigation, in which the theory of the General Counsel’s
case is that McDonald’s USA, LLC is a joint employer of its fran-
chisees’ employees under the joint-employer standard the Board subse-
quently embraced in Browning-Ferris. See McDonald’s USA, LLC,
362 NLRB No. 168, slip op. at 2 fn. 1 (2015) (Members Miscimarra
and Johnson, concurring in part and dissenting in part).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 13
inition that has ever been included in any one act.”
United States v. Rosenwasser, 323 U.S. 360, 363 n. 3,
65 S.Ct. 295, 89 L.Ed. 301 (1945).42
The issue in Enterprise was whether the district court had
erred in granting summary judgment against the plaintiff
employees’ claim that the parent company of their wholly
owned rental car subsidiary was their joint employer with
shared liability for alleged overtime wage violations. The
district court had relied on a traditional common law test.
However, the Third Circuit held that
[b]ecause of the uniqueness of the FLSA, a determina-
tion of joint employment “must be based on a consid-
eration of the total employment situation and the eco-
nomic realities of the work relationship.” A simple ap-
plication of the [district court’s] test would only find
joint employment where an employer had direct control
over the employee, but the FLSA designates those enti-
ties with sufficient indirect control as well. We there-
fore conclude that while the factors outlined today in
[that test] are instructive they cannot, without amplifi-
cation, serve as the test for determining joint employ-
ment under the FLSA.43
It is readily apparent from the distinctions underscored by
the Enterprise court that the new joint-employer test an-
nounced in Browning-Ferris was rooted in “economic reali-
ties” and “statutory purpose” theory, not in the common law
of agency. Indeed, the Browning-Ferris definition of em-
ployer equals or exceeds the “striking breadth” of the FLSA
standard, and it cannot stand in the face of express Congres-
sional disapproval.
The Browning-Ferris majority’s explication of its
joint-employer test erased any doubt that the test they
invented was the analytical stepchild of Hearst, rather
than being founded in common law. The Browning-
Ferris majority posited that as the first step of a joint-
employer analysis, it must be determined whether an
employment relationship exists at all between the alleged
joint employer and an employee. 362 NLRB No. 186,

42 Id. at 467–468; see also Salinas v. Commercial Interiors, Inc., 848
F.3d 125, 133 (4th Cir. 2017) (“The Supreme Court has explained that
the ‘striking breadth’ of these [FLSA] definitions [of ‘employer’ and
‘employee’] brings within the FLSA’s ambit workers ‘who might not
qualify as [employees] under a strict application of traditional agency
law principles’ or under other federal statutes.”) (citing Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. at 326).
43 Id. at 469 (quoting Bonnette v. California Health & Welfare Agen-
cy, 704 F.2d 1465, 1470 (9th Cir. 1983)). The court nevertheless af-
firmed the grant of summary judgment, finding insufficient proof that
the parent company was a joint employer even under the expansive
FLSA standard. It is not clear whether the same evidence considered
under the Browning-Ferris majority’s test would have led to the same
result.
slip op. at 11–12. In short, they did no more than
acknowledge the obvious: an entity with no control
whatsoever over a person performing services in that
entity’s affairs cannot possibly be that person’s employ-
er. But the Browning-Ferris majority incorrectly set this
“zero control” state as the outer limit of common law
master-servant agency. That is, if there is some type of
control (including indirect or contractually reserved con-
trol) over any aspect of the performance of services, then
the common law would allegedly permit finding an em-
ployment relationship. Of course, if that were true, it
would obliterate the common law concept of an inde-
pendent contractor—embedded in the Act in the 1947
Taft-Hartley amendments—and erase the distinction at
common law between servant and nonemployee agent.
The Browning-Ferris majority seemed vaguely to recog-
nize this, but in deciding whether to find that a separate
business is a joint employer with an undisputed employer
of an undisputed employee, the majority nevertheless
looked to whether it would serve the purposes of the Act
to expand the joint-employer definition in order to serve
the Act’s policy of “encouraging the practice and proce-
dure of collective bargaining” (in the words of Section 1
of the Act). Id., slip op. at 1–2. In their view, it was
necessary to do so because the direct and immediate con-
trol standard “serve[s] to significantly and unjustifiably
narrow the circumstances where a joint employment rela-
tionship can be found—leav[ing] the Board’s joint-
employment jurisprudence increasingly out of step with
changing economic circumstances, particularly the recent
dramatic growth in contingent employment relationships.
This disconnect potentially undermines the core protec-
tions of the Act for the employees impacted by these
economic changes.” Id., slip op. at 1.
Compare the Browning-Ferris majority’s reasoning set
forth above to the following passages from Hearst con-
cerning the test for determining whether newsboys were
employees or independent contractors under the Wagner
Act:
Congress had in mind a wider field than the narrow
technical legal relation of “master and servant,” as the
common law had worked this out in all its variations,
and at the same time a narrower one than the entire area
of rendering service to others. The question comes
down therefore to how much was included of the in-
termediate region between what is clearly and unequiv-
ocally ‘employment,’ by any appropriate test, and what
is as clearly entrepreneurial enterprise and not em-
ployment. . . . Myriad forms of service relationship,
with infinite and subtle variations in the terms of em-
ployment, blanket the nation’s economy. Some are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
within this Act, others beyond its coverage. Large
numbers will fall clearly on one side or on the other, by
whatever test may be applied. But intermediate there
will be many, the incidents of whose employment par-
take in part of the one group, in part of the other, in
varying proportions of weight . . . . Unless the com-
mon-law tests are to be imported and made exclusively
controlling, without regard to the statute’s purposes, it
cannot be irrelevant that the particular workers in these
cases are subject, as a matter of economic fact, to the
evils the statute was designed to eradicate and that the
remedies it affords are appropriate for preventing them
or curing their harmful effects in the special situation.
322 U.S. 124–127 (footnotes omitted). The only significant
difference between the majority’s reasoning in Browning-
Ferris and the Supreme Court’s reasoning in Hearst is that
the Court at least candidly recognized that the “intermediate
region” into which it extended the Wagner Act’s definition
of covered employees was beyond the scope of common
law, while the Browning-Ferris majority disingenuously
claimed that the intermediate region into which they extend-
ed the definition of joint employer stayed well within the
limits of that law. Clearly, it does not. We believe the
Board’s traditional joint-employer test accurately reflects
common law. Moreover, we disagree with any suggestion
that the Browning-Ferris test constitutes an appropriate way
under common law to advance the statutory goal of promot-
ing collective bargaining. Indeed, as we discuss below in
Section VI, we find the Browning-Ferris test is more likely
to destabilize collective bargaining than to promote it.
V. OTHER PROBLEMS WITH THE BROWNING-FERRIS
STANDARD
A. The Browning-Ferris Majority’s Alleged Return to
the Alleged “Traditional Standard” Relies on a Selective
Misreading of Precedent Before and After TLI
and Laerco.
The Browning-Ferris majority stated that the TLI and
Laerco decisions “significantly and unjustifiably nar-
row[ed]” what they deemed to be the Board’s “tradition-
al” joint-employer standard. 362 NLRB No. 186, slip
op. at 1. This standard allegedly encompassed far more
factors, including those related to indirect control and
reserved contractual control, and more comprehensively
analyzed employment relationships to determine whether
an entity was a joint employer. However, in selecting
only the few cases allegedly supporting this view of tra-
ditional practice, the Browning-Ferris majority neglected
other cases where the Board found no joint-employer
relationship, despite the presence of the supposedly “tra-
ditional” “indirect control” factors that the Browning-
Ferris majority claimed served to justify a finding of
such a relationship. Contrary to the Browning-Ferris
majority, the Board’s prior cases did not manifest an in-
tention to apply a broad analytical framework in which
indirect control played a determinative role in joint-
employer cases. We agree that the Board has traditional-
ly carried out a fact-intensive assessment of whether a
putative employer exercised sufficient control over, or
retained the right to control, the employees at issue. We
disagree, however, with the notion that prior to TLI and
Laerco the Board, as a rule, gave much probative weight
to evidence of “indirect control,” or that such evidence,
standing alone, was routinely determinative.44 We will
now turn to a discussion of these factors of “indirect con-
trol.”
The following sentence is emblematic of the Brown-
ing-Ferris majority’s attempt to prove too much by the
citation of the older cases:
[T]he Board’s joint-employer decisions found it proba-
tive that employers retained the contractual power to
reject or terminate workers; set wage rates; set working
hours; approve overtime; dictate the number of workers
to be supplied; determine “the manner and method of
work performance”; “inspect and approve work”; and
terminate the contractual agreement itself at will.
362 NLRB No. 186, slip op. at 9 (footnotes omitted).
The foregoing statement included footnote citations to
precedent allegedly showing that “the Board typically
treated the right to control the work of employees and
their terms of employment as probative of joint-employer
status.” Id. (emphasis in original). According to the
Browning-Ferris majority, the Board “did not [historical-
ly] require that this right be exercised, or that it be exer-
cised in any particular manner.” Id. They failed to men-
tion, however, that in many of the cases cited in their
decision, there was evidence that the contractual rights
were exercised, and there was other evidence of direct
control over employees’ work. The majority’s statement
also fails to account for all the Board cases that reach the
contrary result with similar contractual provisions. Thus,
we can paraphrase the Browning-Ferris majority’s
statement, with appropriate citations, that during the pe-
riod preceding TLI and Laerco, the Board found no joint-
employer status where putative “employers retained the

44 Apart from our disagreement with the Browning-Ferris majority’s
characterization of the joint-employer tests that existed prior to 1984,
we note that in one major respect TLI and Laerco undisputedly broad-
ened the circumstances in which a joint-employer relationship could be
found. That is, by adopting the Third Circuit’s Browning-Ferris joint-
employer test, the Board made clear that the more restrictive single-
employer test, requiring a showing of a less than arms-length relation-
ship between employers, did not apply.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 15
contractual power to reject or terminate workers;45 set
wage rates;46 set working hours;47 approve overtime;48
determine ‘the manner and method of work perfor-
mance’;49 ‘inspect and approve work,’50 and terminate
the contractual agreement itself at will.”51 Additionally,
prior to TLI and Laerco the Board found that employers
who conferred over the number of employees needed and
the hours to be worked were not joint employers.52
The Browning-Ferris majority also stated that prior to
TLI and Laerco “the Board gave weight to a putative
joint employer’s ‘indirect’ exercise of control over work-
ers’ terms and conditions of employment,” 362 NLRB
No. 186, slip op. at 9 (citing Floyd Epperson, 202 NLRB
23, 23 (1973), enfd. 491 F.2d 1390 (6th Cir. 1974)).
However, it is readily apparent that, while the Board in
Floyd Epperson noted anecdotal evidence of the employ-
er’s indirect control over wages and discipline, its joint-
employer finding was primarily based on evidence of
direct and immediate supervision of the employees in-
volved.53 Similarly, in Fidelity Maint. & Constr. Co.,
supra, 173 NLRB at 1037, the Board emphasized direct
control, saying that “the determinative factor in an owner
contractor situation is whether the owner exercises or has
the right to exercise sufficient direct control over the
labor relations policies of the contractor, or over the
wages, hours and working conditions” (emphasis added).
Likewise, in The John Breuner Co., 248 NLRB at 989,
the Board affirmed without comment the administrative
law judge’s observation that in prior truck delivery cases
in which the Board found joint-employer status, “there
have always been supporting findings that the retailer or
distributor by its supervisors, directly supervised and
controlled the employees of his trucking contractor in the
performance of their work” (emphasis added). Thus,
contrary to the Browning-Ferris majority, Epperson and
like precedent support the proposition that findings of
joint-employer status in cases prior to TLI and Laerco

45 Cabot Corp., 223 NLRB 1388, 1390 fn. 10 (1976), affd. sub nom.
International Chemical Workers Union Local 483 v. NLRB, 561 F.2d
253 (D.C. Cir. 1977); Hychem Constructors, Inc., 169 NLRB 274, 276
(1968); Westinghouse Elec. Corp., 163 NLRB 914 (1967); Space Servs.
Int’l Corp., 156 NLRB 1227, 1232 (1966).
46 Cabot, supra; Hychem, supra at fn. 4; Fidelity Maintenance and
Constr. Co., 173 NLRB 1032, 1037 (1968).
47 Tilden, S. G., Inc., 172 NLRB 752 (1968).
48 Hychem, supra at 276.
49 Tilden, S. G., Inc., supra.
50 Cabot, supra at 1392; Westinghouse, supra at 915.
51 Space Servs., supra at fn. 23.
52 The John Breuner Co., 248 NLRB 983, 989 (1980); Furniture
Distribution Center, 234 NLRB 751, 751–752 (1978).
53 202 NLRB at 23 (“United establishes the work schedule of the
drivers, has the authority to make changes in the drivers’ assignments,
selects routes for the drivers, and generally supervises the drivers in the
course of their employment.”).
that mention evidence of indirect control nevertheless
turn on sufficient proof of direct control.
The Browning-Ferris majority also contended that
“[c]ontractual arrangements under which the user em-
ployer reimbursed the supplier for workers’ wages or
imposed limits on wages were also viewed as tending to
show joint-employer status.” 362 NLRB No. 186, slip
op. at 9 (citing Hamburg Industries, 193 NLRB 67
(1971)). Hamburg involved a typical cost-plus contract
where the user employer reimbursed the supplier em-
ployer for wages and then paid an additional fee. The
Board has cited this factor in cases where it found joint-
employer status. However, in numerous cases, the Board
has also found that this factor did not establish joint-
employer status.54 In any event, as explained in a subse-
quent case, the facts in Hamburg clearly demonstrated
that the disputed employer exercised significant direct
and immediate control of essential terms. Specifically,
“one employer, a manpower supplier, furnished another
employer’s entire work force, including first-level super-
visors. That work force was subject to virtually complete
control of the second employer. The second employer
determined which tasks were to be performed and how
they were to be performed. He also, in practice, set the
wage rates.”55 Again, before TLI and Laerco, there was
no established rule that cost-plus contracts should be
given determinative weight in finding joint-employer
status.
In sum, the precedent cited by the Browning-Ferris
majority fell well short of showing that prior to TLI and
Laerco there was a consistently applied “traditional joint-
employer test” remotely equivalent to the one they an-
nounced. The indirect control factors cited by the
Browning-Ferris majority existed in many cases where
the Board declined to find joint-employer status and thus
were not frequently, much less routinely, determinative
of that status. Evidence of direct and immediate control
was far more often referenced as determinative in finding
such status.56 The interpretive key to different outcomes

54 See Hychem, supra at 276 (referring to controls under a cost-plus
contract as a “right to police reimbursable expenses under its cost-plus
contract,” and finding such controls “do not warrant the conclusion that
[user] has hereby forged an employment relationship”); Westinghouse,
supra at 915 (cost-plus contract; no joint-employer finding); Space
Services, supra at 1232 (same); Cabot, supra at 1389 (“[C]ost plus
contracts merely insured that Cabot obtain a satisfactory work product
at cost and protected it against unnecessary charges being incurred.”);
International House, supra at 914 (cost-plus “purely arms length deal-
ing”); John Breuner, supra at 988 (cost-plus insufficient to find joint-
employer status).
55 Cabot, supra, 223 NLRB at 1391 fn. 11.
56 We recognize that dictum in Airborne Freight stated that “approx-
imately 20 years ago, the Board, with court approval, abandoned its
previous test in this area, which had focused on a putative joint em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
in this body of precedent is not a markedly different legal
test. It is simply that “minor differences in the underly-
ing facts might justify different findings on the joint-
employer issue.” North Am. Soccer League v. NLRB
(NASL), 613 F.2d 1379, 1382 (5th Cir. 1980), cert. de-
nied 449 U.S. 899 (1980); see also Carrier Corp. v.
NLRB, 768 F.2d 778, 781 fn. 1 (6th Cir. 1985) (distin-
guishing TLI and Laerco by noting that a slight differ-
ence between two cases can tilt one toward a joint-
employer finding, and the court was not deciding those
other cases).
B. There Is No Judicial Precedent Adverse to the
Board’s “Direct and Immediate Control” Standard or
Supportive of the Browning-Ferris Standard.
It is reasonable to assume that if TLI, Laerco, and their
progeny departed abruptly from Board precedent without
explanation, reviewing courts would have had the oppor-
tunity to criticize those decisions and would certainly
have done so. After all, the Supreme Court and various
appellate courts have warned the Board against such un-
explained changes. See Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 375 (1998) (“The evil of a
decision that applies a standard other than the one it
enunciates spreads in both directions, preventing both
consistent application . . . and effective review of the law
by the courts.”); NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 799 (1990) (Blackmun, J., dissenting)
(finding the Board had departed from prior standard
“without explanation”); Bath Marine Draftsmen’s Ass’n
v. NLRB, 475 F.3d 14, 25 (1st Cir. 2007) (stating that
when “the Board has not been consistent in its choice of
standard . . . . the Board is not entitled to the normal def-
erence we owe it”); LeMoyne-Owen Coll. v. NLRB, 357
F.3d 55, 61 (D.C. Cir. 2004) (“Requiring an adequate
explanation of apparent departures from precedent thus
not only serves the purpose of ensuring like treatment
under like circumstances, but also facilitates judicial re-
view of agency action in a manner that protects the agen-
cy’s predominant role in applying the authority delegated
to it by Congress.”). As the D.C. Circuit noted in
LeMoyne-Owen, courts are duty-bound to strike down
Board decisions that lack explanation or otherwise reflect
that the Board was arbitrary and capricious in its exercise
of statutory authority.
In this context, the Board’s direct and immediate con-
trol standard has been consistently applied and upheld
throughout the last 30 years. Although some courts have

ployer’s indirect control over matters relating to the employment rela-
tionship.” 338 NLRB at 597 fn. 1 (emphasis in original). For the rea-
sons just stated, we find this dictum to be a mistaken characterization of
precedent.
varied as to the particulars of a joint-employer test, many
courts have expressly approved or applied the Board’s
test, and none have directly criticized that test or reversed
a Board decision based on application of that test.
Significantly, two of the four Board decisions express-
ly overruled by the Browning-Ferris majority were re-
viewed by a court of appeals, and both decisions were
upheld. The decision in TLI was reviewed by a panel of
the Third Circuit—the court that authored the original
Browning-Ferris decision—and summarily affirmed in
an unpublished decision.57 Likewise, the decision in AM
Property was reviewed and affirmed in relevant part by a
panel of the Second Circuit.58 In accord with its own
precedents, which predate TLI and Laerco, the Second
Circuit endorsed the Board’s pre-Browning-Ferris stand-
ard, holding that ‘“an essential element’ of any joint-
employer determination is ‘sufficient evidence of imme-
diate control over the employees.’”59 The court specifi-
cally supported the Board’s finding that “limited and
routine” supervision is insufficient to establish joint-
employer status:
The cases the Board relied on broadly support the
proposition that ‘limited and routine’ supervision, G.
Wes Ltd., 309 N.L.R.B. at 226, consisting of ‘directions
of where to do a job rather than how to do the job and
the manner in which to perform the work,’ Island
Creek Coal, 279 N.L.R.B. at 864, is typically insuffi-
cient to create a joint employer relationship. See also
Local 254, Serv. Emps. Intern. Union, AFL–CIO, 324
N.L.R.B. 743, 746–49 (1997) (no joint employer rela-
tionship where employer regularly directed mainte-
nance employees to perform specific tasks at particular
times but did not instruct employees how to perform
their work); S. Cal. Gas Co., 302 N.L.R.B. 456, 461–
62 (1991) (employer’s direction of porters and janitors
insufficient to establish joint employer relationship
where employer did not, inter alia, affect wages or ben-
efits, or hire or fire employees).
Id. at 443.
Thus, the Second Circuit has expressly endorsed the
Board’s “direct and immediate control” standard for ana-
lyzing joint-employer allegations. In an earlier case, the
Second Circuit observed that other courts of appeals have
varying standards for determining joint-employer status,

57 General Teamsters Local Union No. 326 v. NLRB, 772 F.2d 894
(3d Cir. 1985).
58 Service Employees Int’l Union, Local 32BJ v. NLRB, 647 F.3d 435
(2d Cir. 2011), affirming in relevant part, enforcing in part and denying
in part on other grounds 350 NLRB 998.
59 Id. at 443 (quoting Clinton’s Ditch Co-op Co. v. NLRB, 778 F.2d
132, 138 (2d Cir. 1985)).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 17
but the court saw “no need to select among these ap-
proaches or to devise an alternative test, because we find
that an essential element under any determination of
joint-employer status in a sub-contracting case is dis-
tinctly lacking in the instant case—some evidence of im-
mediate supervision or control of the employees.”60
It is most noteworthy that, in addition to the absence of
any circuit court precedent in conflict with the Board’s
“direct and immediate control” test of joint-employer
status, there also is no circuit court precedent that sup-
ports the Browning-Ferris two-step test. That test, which
lacked any requirement that an alleged joint employer’s
control be significant or substantial, much less direct and
immediate, most closely resembled a single Board deci-
sion’s bizarre distortion of dictum from an Eighth Circuit
opinion in a case called NLRB v. New Madrid Mfg. Co.,
215 F.2d 908 (1954).
In New Madrid, the court denied enforcement of a
Board order to the extent that it relied on a finding that a
company remained a co-employer after selling its busi-
ness to an individual, Jones. Finding no substantial evi-
dence to support the Board’s finding, the court found,
among other things, that provisions in the contract of sale
did not demonstrate that New Madrid retained control
over Jones’ operations. In particular, the court stated that
the contract did not “either expressly or by implication,
purport to give New Madrid any voice whatsoever in the
selecting or discharging of Jones’ employees, in the fix-
ing of wages for such employees, or in any other element
of labor relations, conditions and policies in the plant
purchaser’s business.” Id. at 913.
Thereafter, in Hoskins Ready-Mix Concrete, 161
NLRB 1492 (1966), a Board panel affirmed an adminis-
trative law judge’s finding that a cement company was
the joint employer of the employees of a company that
leased trucks and drivers to the cement company. In
doing so, the Board focused on the power the parties’
lease and operating agreements gave to the cement com-
pany. For example, the cement company retained the
power to control the disbursement of funds it furnished
to the truck leasing company for the drivers’ wages. In a
footnote citation to New Madrid, the Board converted the
aforementioned dictum from negative to positive, incor-
rectly claiming that the court’s test of co-ownership was
whether a contract gave the putative joint employer “any
voice whatsoever” over terms and conditions of em-
ployment of another employer’s employees.61 This was

60 International House v. NLRB, 676 F.2d 906, 913 (2d Cir. 1982)
(emphasis added); see also Texas World Service Co. v. NLRB, 928 F.2d
1426, 1432 (5th Cir. 1991) (“[T]he essential element is immediate
control over the employees.”).
61 Id. at 1493 fn. 2.
not then and is not now the joint-employer test of the
Eighth Circuit62 or any other court of appeals. It was not
then the Board’s joint-employer test, and it has not been
the test since Hoskins Ready-Mix. Until Browning-
Ferris, that is.
Of course, the Board is free to go its own way and de-
termine its own standards, but only within the statutory
framework and with adequate explanation of the reasons
for departing from long-established precedent. The
Browning-Ferris majority claimed that 30 years ago the
Board departed without explanation from prior precedent
by drastically restricting its test in a way that denies
many workers their Section 7 rights. However, the ab-
sence of any judicial criticism of the “direct and immedi-
ate control” test undermines this claim. It is simply im-
possible that all the courts of appeals would have missed
this train wreck, had there been one.
VI. THE BROWNING-FERRIS TEST WAS IMPERMISSIBLY
VAGUE AND OVERBROAD, FOSTERING LEGAL
UNCERTAINTY AND LABOR RELATIONS INSTABILITY.
A. Browning-Ferris Provided No Guidance as to When
and How Parties May Contract for the Performance of
Work Without Being Deemed Joint Employers.
Multi-factor tests, like the common-law agency stand-
ard that the Board must apply, are vulnerable to an anal-
ysis that can be impermissibly unpredictable and results-
oriented. As then-Judge Roberts remarked about the
standard for determining whether college faculty are
managerial employees under the Act under NLRB v. Ye-
shiva University:63
The need for an explanation is particularly acute when
an agency is applying a multi-factor test through case-
by-case adjudication. The open-ended rough-and-
tumble of factors on which Yeshiva launched the Board
and higher education can lead to predictability and in-
telligibility only to the extent the Board explains, in ap-
plying the test to varied fact situations, which factors
are significant and which less so, and why. . . . In the
absence of an explanation, the totality of the circum-
stances can become simply a cloak for agency whim—
or worse.64
Browning-Ferris’ multi-factor test, under which any degree
of indirect or contractually reserved control over a single
employment term is probative of and may suffice to estab-

62 The Eighth Circuit applies a four-factor test similar to a single-
employer analysis. E.g., Industrial Personnel Corp. v. NLRB, 657 F.2d
226, 229 (8th Cir. 1981).
63 444 U.S. 672 (1980).
64 LeMoyne-Owen College v. NLRB, supra, 357 F.3d at 61 (citations
and quotations omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
lish joint-employer status, lacks the required explanation of
“which factors are significant and which less so, and why.”
The Browning-Ferris majority provided no meaningful
guidelines as to the test’s future application. Further, they
acknowledged no legitimate grounds for parties in a busi-
ness relationship to insulate themselves from joint-employer
status under the Act.
The Browning-Ferris test stands in marked contrast to
the prior, longstanding test, under which evidence of
direct and immediate control of essential terms of em-
ployment was required, thereby establishing a clearly
discernible and rational line between what does and does
not constitute a joint-employer relationship under the
Act. As the D.C. Circuit has observed, the “direct and
immediate control” test recognizes that “[s]ignificant
limits . . . exist upon what actions by an employer count
as control over the means and manner of performance.
Most important, employer efforts to monitor, evaluate,
and improve the results or ends of the worker’s perfor-
mances do not make the worker an employee. Such
global oversight, as opposed to control over the manner
and means of performance (and especially the details of
that performance), is fully compatible with the relation-
ship between a company and an independent contrac-
tor.”65
By comparison, the Browning-Ferris test treats as pro-
bative of joint-employer status all evidence of indirect
control of such factors as determining the place of work,
defining the work to be performed and how quickly it
needs to be done, prescribing the hours when work will
be performed, setting minimum qualifications for the
individuals the contractor furnishes to perform the work
and reserving the right to reject an individual (even
though the contractor may assign the rejected employee
to a different job), inspecting the contractor’s work, giv-
ing results-oriented feedback to the contractor that the
contractor’s supervisors use in directing the contractor’s
employees, agreeing to a price for the contractor’s ser-
vices that happens to be in the form of a cost-plus formu-
la, and reserving the right to cancel the arrangement.
Accordingly, under the Browning-Ferris test, a home-
owner hiring a plumbing company for bathroom renova-
tions could well be deemed a joint employer of the
plumbing company’s employees! By adopting such an
overbroad, all-encompassing and highly variable test, the
Browning-Ferris majority extended the Act’s definition
of “employer” well beyond its common-law meaning,
and beyond its ordinary meaning as well. Cf. Allied
Chemical Workers Local 1 v. Pittsburgh Plate Glass Co.,

65 North American Van Lines, Inc. v. NLRB, 869 F.2d 596, 599 (D.C.
Cir. 1989) (citations omitted).
supra, 404 U.S. at 168 (1971) (admonishing the Board
for extending “employee” beyond its ordinary meaning
by attempting to include retirees within its scope).
The expansive nature of the Browning-Ferris test was
demonstrated by the evidence the Browning-Ferris ma-
jority relied on to find joint-employer status in that case,
which involved a “cost-plus” arrangement common in
user-supplier contracts:66 (1) a few contract provisions
that indirectly affected the otherwise unfettered right of
Leadpoint (the supplier employer) to hire its own em-
ployees; (2) reports made by BFI representatives to
Leadpoint of two incidents that understandably resulted
in discipline, one where a Leadpoint employee was ob-
served passing a “pint of whiskey” at the BFI jobsite, and
another where a Leadpoint employee “destroyed” a drop
box; (3) one contractually established pay rate ceiling
restriction for Leadpoint employees, obviously stemming
from the cost-plus nature of the contract; (4) BFI’s con-
trol of its own facility’s hours and production lines; (5) a
recordkeeping requirement for Leadpoint employee
hours (again, obviously stemming from the cost-plus
nature of the contract); (6) a single pre-shift meeting to

66 The Board and the courts have uniformly concluded that cost-plus
arrangements do not automatically render the contracting client an
“employer” of the vendor’s employees. Accordingly, the Browning-
Ferris majority conceded that a cost-plus “arrangement, on its own, is
not necessarily sufficient to create a joint-employer relationship.” 362
NLRB No. 186, slip op. at 19. Indeed, the Board and the courts have
uniformly concluded that nothing in cost-plus arrangements necessarily
renders the contracting client an “employer” of the vendor’s employees.
In Fibreboard, for example, the contracting client (Fibreboard) ar-
ranged for employees of the contractor (Fluor) “to do the same
[maintenance] work under similar conditions of employment,” and
Fibreboard committed to pay the “costs of the operation plus a fixed
fee.” 379 U.S. at 206–207. As noted previously (see fn. 14, supra),
Fibreboard was clearly treated as a distinct entity having no employ-
ment relationship with the subcontractor’s employees, even though the
reasons underlying the subcontracting decision were almost exclusively
employment-related. Indeed, the Supreme Court noted that Fibreboard
“was induced to contract out the work by assurances from independent
contractors that economies could be derived by reducing the work
force, decreasing fringe benefits, and eliminating overtime payments.”
Id. at 213 (emphasis added).
The Browning-Ferris majority nevertheless attempted to distinguish
the facts of Browning-Ferris based on an “apparent requirement of BFI
approval over . . . pay increases” for the supplier employer’s employ-
ees. 362 NLRB No. 186, slip op. at 19. In this respect—
notwithstanding their acknowledgment that a cost-plus contract “is not
necessarily sufficient to create a joint-employer relationship”—the
Browning-Ferris majority in principle conferred “employer” status on
every client-user that enters into a cost-plus arrangement with a suppli-
er of labor, since few, if any, clients will give a blank check to supplier-
employers regarding the supplier’s employees’ wages when the full
cost will be charged to the client. This is but one illustration of the
multitude of ways that the Browning-Ferris majority failed to adapt the
Act to the “complexities of industrial life,” which is one of the Board’s
most important responsibilities. NLRB v. Erie Resistor Corp., 373 U.S.
221, 236 (1963).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 19
advise Leadpoint supervisors what lines will be running
and what tasks they are supposed to do on those lines; (7)
monitoring of productivity; (8) establishment of one type
of generally applicable production assignment scheme
for Leadpoint; and (9) “on occasion” addressing Lead-
point employees directly about productivity. 362 NLRB
No. 186, slip op. at 18–19. That is all there was, and the
Regional Director correctly decided under then-extant
law that it was not enough to show BFI was the joint
employer of Leadpoint’s employees.
The evidence relied on by the Browning-Ferris majori-
ty amounted to a collection of general contract terms and
business practices common to most contracting entities
(discussed below), plus a few actions by BFI that had
some routine impact on Leadpoint employees. It would
be difficult to find any two entities engaged in an arm’s-
length contractual relationship involving work performed
on the client’s premises that lack this type of interaction.
Again, we suppose that our colleagues do not intend that
every business relationship necessarily entails joint-
employer status, but the facts relied upon in Browning-
Ferris demonstrated the expansive, near-limitless nature
of the standard created in that case.
There is a further fundamental problem with Brown-
ing-Ferris’ joint-employer test. The majority there stated
that their goal was to extend the protection of Section 7
to a large number of employees they felt had been left
unprotected because they work on a contingent or tempo-
rary basis. According to them, the number of workers so
employed had dramatically risen since TLI and Laerco
were decided and would predictably continue to rise.
362 NLRB No. 186, slip op. at 11. Further, the Brown-
ing-Ferris majority asserted that “[t]he Board’s current
focus on only direct and immediate control acknowledg-
es the most proximate level of authority, which is fre-
quently exercised by the supplier firm, but gives no con-
sideration to the substantial control over workers’ terms
and conditions of employment of the user.” Id., slip op.
at 14–15.
Thus, not only was the Browning-Ferris majority’s le-
gal justification for a new joint-employer test impermis-
sibly based on economic reality theory, as previously
discussed, but its factual justification was flawed as well.
The majority there focused on facts limited to a particular
type of business model—the user/supplier relationship
involving the use of contingent employees—but they
relied on these facts to justify a change in the statutory
definition of employer, or joint employer, for all types of
business relationships between two or more entities.
The number of contractual relationships potentially
encompassed by the Browning-Ferris standard was vast,
including contractual relationships involving
 insurance companies that require employers to
take certain actions with their employees in or-
der to comply with policy requirements for safe-
ty, security, health, etc.;
 franchisors (see below);
 banks or other lenders whose financing terms
may require certain performance measurements;
 any company that negotiates specific quality or
product requirements;
 any company that grants access to its facilities
for a contractor to perform services there, and
then regulates the contractor’s access to the
property for the duration of the contract;
 any company that is concerned about the quality
of contracted services;
 consumers or small businesses who dictate
times, manner, and some methods of perfor-
mance of contractors.
Our point is not that the Browning-Ferris majority intended
to make all players in the economy, no matter how small,
necessary parties at the bargaining table (although, as dis-
cussed below, they may well have become targets of eco-
nomic protest in support of union bargaining demands or
other union causes), but that the Browning-Ferris standard
foreshadowed the extension of obligations under the Act to
a substantial group of business entities without any predict-
able limitations.67 This kind of vague and overbroad gov-
ernment regulation is necessarily arbitrary and capricious.
“In the absence of an explanation, the ‘totality of the cir-
cumstances’ can become simply a cloak for agency whim—
or worse.” LeMoyne-Owen Coll. v. NLRB, supra, 357 F.3d
at 61.
Browning-Ferris effected a sweeping change in the
law without any substantive discussion of significant
adverse consequences raised by the parties and amici in
that case. The Browning-Ferris majority professed to
limit themselves to the issue of joint bargaining obliga-
tions in the user-supplier context, with a disclaimer that
their decision “does not modify any other legal doctrine .
. . or change the way that the Board’s joint-employer
doctrine interacts with other rules or restrictions under
the Act.” 362 NLRB No. 186, slip op. at 20 fn. 120.
However, such a disclaimer could not possibly have been
valid because applying different tests in other circum-
stances would mark an unprecedented and unwarranted
break from the unitary joint-employer test under the Act,

67 The Browning-Ferris majority correctly stated that “the annals of
Board precedent contain no cases that implicate the consumer services
purchased by unsuspecting homeowners or lenders.” But there was no
guarantee that what is past is prologue under Browning-Ferris’ imper-
missibly expansive test.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
which has applied to all types of business relationships,
each of which was affected by changing the joint-
employer test. In our view, the adverse consequences
that logically flow from the Browning-Ferris standard
warrant a return to the “direct and immediate control”
standard.
B. Browning-Ferris Destabilized Bargaining Relation-
ships and Created Unresolvable Legal Uncertainty.
Browning-Ferris greatly expanded the joint-employer
test without grappling with its practical implications for
real-world collective-bargaining relationships. The ma-
jority there purported to be following the command in
Section 1 of the Act to “encourag[e] the practice and
procedure of collective bargaining.” Congress did not
mean, however, to blindly expand collective-bargaining
obligations whether or not they are appropriate. The Act
aims to “achiev[e] industrial peace by promoting stable
collective-bargaining relationships.” Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996) (empha-
sis added). Indeed, one of the Board’s primary responsi-
bilities under the Act is to foster labor relations stability.
Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355,
362–363 (1949) (“To achieve stability of labor relations
was the primary objective of Congress in enacting the
National Labor Relations Act.”); NLRB v. Appleton Elec.
Co., 296 F.2d 202, 206 (7th Cir. 1961) (A “basic policy
of the Act [is] to achieve stability of labor relations.”).
And the Supreme Court has stressed the need to provide
“certainty beforehand” to employers and unions alike.
Employers must have the ability to “reach decisions
without fear of later evaluations labeling . . . conduct an
unfair labor practice,” and a union similarly must be able
to discern “the limits of its prerogatives, whether and
when it could use its economic powers . . . , or whether,
in doing so, it would trigger sanctions from the Board.”
First National Maintenance Corp. v. NLRB, supra, 452
U.S. at 678–679, 684–686.
Collective bargaining was intended by Congress to be
a process that could conceivably produce agreements.
One of the key analytical problems in widening the net of
“who must bargain” is that, at some point, agreements
predictably will not be achievable because different par-
ties involuntarily thrown together as negotiators under
the Browning-Ferris test will predictably have widely
divergent interests. Browning-Ferris’ marked expansion
of bargaining obligations to other business entities
threatened to destabilize existing bargaining relationships
and complicate new ones. Even if one takes an extreme-
ly simplistic user-supplier scenario, the Browning-Ferris
standard, which made many clients an “employer” of
contractor employees while making contractors an “em-
ployer” jointly with their clients, stood to produce bar-
gaining relationships and problems unlike any that have
existed in the Board’s history, which could not have been
contemplated or intended by Congress.
Consider the following diagram, which depicts a single
cleaning company named “CleanCo” that has cleaning
contracts with three clients. CleanCo employees work at
each client’s facilities in circumstances similar to Brown-
ing-Ferris, and CleanCo periodically adds future clients.
Assuming circumstances like those presented in
Browning-Ferris, the Browning-Ferris majority would
find that CleanCo and Client A are a joint employer at
Client A’s location, CleanCo and Client B are a joint
employer at Client B’s location, and CleanCo and Client
C are a joint employer at Client C’s location. Such a
scenario—involving a single vendor and only three cli-
ents, each with only one location—potentially gives rise
to all of the following problems under the Browning-
Ferris test.
1. Union Organizing Directed at CleanCo. If CleanCo
employees are currently unrepresented and a union seeks to
organize them, this gives rise to the following issues and
problems:
 What Bargaining Unit(s)? Although CleanCo
directly controls all traditional indicia of em-
ployer status, the Browning-Ferris test estab-
lished that three different entities—Clients A,
B, and C—are joint employers of potentially
overlapping groups of different CleanCo em-
ployees. It is unclear whether a single bar-
gaining unit consisting of all CleanCo em-
ployees could be deemed appropriate, given
the distinct role that the Browning-Ferris test
requires each client to play in bargaining.
 What “Employer” Participates in NLRB
Election Proceedings? If the union files a rep-
resentation petition with the Board, the Act
requires the Board to afford “due notice” and
to conduct an “appropriate hearing” that in-
volves the “employer.” Section 9(c)(1). Cur-
rently, the Board has no means of identifying,
Con
001It
Client Contract
Client Contract
NeW client C
Tact
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 21
much less providing “due notice” and afford-
ing the right of participation to, “employer”
entities like Clients A, B, and C, even though
they would inherit bargaining obligations if
CleanCo employees select the union.
 Who Does the Bargaining? If the union wins
an election involving all CleanCo employees,
the Browning-Ferris test would require par-
ticipation in bargaining by CleanCo and Cli-
ents A, B, and C. Here, Browning-Ferris
provided that each party “will be required to
bargain only with respect to such terms and
conditions which it possesses the authority to
control.” 362 NLRB No. 186, slip op. at 16
(emphasis added). However, because the
Browning-Ferris standard is so broad—
including direct control, indirect control, and
contractually reserved control, even if never
exercised in fact—nobody could ever reason-
ably know who is responsible for bargaining
what.68
 CleanCo-Client Bargaining Disagreements.
The Browning-Ferris standard failed to ad-
dress how “employers” such as Clients A, B,
and C, plus employer CleanCo, can formulate
coherent proposals and provide meaningful
responses to union demands, when they will
undoubtedly disagree among themselves re-
garding many if not most matters that are the
subject of collective bargaining. Here, the
Browning-Ferris majority disregarded the
fact that CleanCo’s client contracts will typi-
cally have resulted from difficult negotiations
with Clients A, B, and C. Therefore, the joint
bargaining contemplated by the Browning-
Ferris majority would involve significant dis-
agreements between and among the employer
entities (Clean Co and Clients A, B, and C),
with no available process for resolving such
disputes.69
 Forced Disclosure to Clients of CleanCo
Confidential Information. The most conten-
tious issue between CleanCo and Clients A,
B, and C is likely to involve the amounts
charged by CleanCo for its services, which
predictably could vary substantially between
Clients A, B, and C depending on their re-
spective leverage, their varying needs for

68 We discuss this aspect of the “authority problem” in more detail
below.
69 We also discuss this aspect of the “authority problem” in more de-
tail below.
CleanCo’s services, the duration of their re-
spective client contracts (i.e., short term or
long term), and other factors. If a union suc-
cessfully organizes all CleanCo employees,
the resulting bargaining would almost certain-
ly require the disclosure of sensitive CleanCo
financial information to Clients A, B, and C,
which would likely enmesh the “employer”
parties in disagreements with one another,
separate and apart from those arising in col-
lective bargaining between the union and the
“employers.”
We have already found, in prior cases, that
this information is sensitive and is not neces-
sary to employees’ exercise of rights under
the Act. See, e.g., Flex Frac Logistics, 360
NLRB 1004, 1004 (2014) (detailing disrup-
tion occurring when contractor, which “was
particularly concerned to maintain the confi-
dentiality of the rates it charges its clients,”
had those rates disclosed to clients by em-
ployee), enfd. 746 F.3d 205 (5th Cir. 2017).
Browning-Ferris essentially guaranteed such
disruption.
 How Many Labor Contracts? If a single un-
ion organizes all CleanCo employees, the
above problems might be avoided if CleanCo
engages in three separate sets of bargaining—
devoted to Client A, Client B, and Client C,
respectively—resulting in three separate labor
contracts. However, this would be incon-
sistent with the CleanCo bargaining unit if it
encompassed all CleanCo employees, and
CleanCo would violate the Act if it insisted
on changing the scope of the bargaining unit,
which under well-established Board law is a
nonmandatory subject of bargaining.
 What Contract Duration(s)? If a union repre-
sented all CleanCo employees, and if the
Board certified the employees assigned to
each client location as separate bargaining
units, then presumably there would be sepa-
rate negotiations, and separate resulting
CBAs, covering the CleanCo employees as-
signed to Client A, Client B, and Client C, re-
spectively. In this case, however, the duration
of each CBA might vary, depending on each
side’s bargaining leverage, and a further
complication would arise where CBA termi-
nation dates varied from one client location to
another.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
 Do Client Contracts Control CBAs, or Do
CBAs Control Client Contracts? Regardless
of whether the CleanCo CBAs have termina-
tion dates that coincide with the expiration of
CleanCo’s client contracts, the Browning-
Ferris test left unanswered whether CleanCo
and Clients A, B, and C could renegotiate
their client contracts, or whether joint bar-
gaining obligations and the CBAs would ef-
fectively trump any potential client contract
renegotiations, even though this would be
contrary to the Supreme Court’s indication
that Congress, in adopting the NLRA, “had
no expectation that the elected union repre-
sentative would become an equal partner in
the running of the business enterprise in
which the union’s members are employed.”
First National Maintenance, supra, 452 U.S.
at 676. Likewise, similar to what the majority
held in CNN (see discussion infra), the
Browning-Ferris majority would have im-
posed their new joint-employer bargaining
obligations on Clients A, B, and C, even if the
client contracts explicitly identified CleanCo
as the sole employer and stated that CleanCo
had sole and exclusive responsibility for col-
lective bargaining.
 New Clients (Possibly with Their Own Union
Obligations). If a union represented all
CleanCo employees, and if (under the Brown-
ing-Ferris test) all CleanCo clients were
deemed joint employers with CleanCo, what
happens when Clean Co obtains new clients
that previously had cleaning work performed
by in-house employees or a predecessor con-
tractor, and those in-house or contractor em-
ployees were unrepresented or represented by
a different union? If, based on CleanCo’s ex-
isting union commitments, CleanCo refused
to hire the employees who formerly did the
new client’s cleaning work, the refusal could
constitute antiunion discrimination in viola-
tion of Sec. 8(a)(3). On the other hand, if
CleanCo hired the new client’s former em-
ployees (or the former employees of a prede-
cessor contractor), then CleanCo could run
afoul of its existing union obligations. See
Whitewood Maintenance Co., 292 NLRB
1159, 1168–1169 (1989), enfd. 928 F.2d 1426
(5th Cir. 1991). Alternatively, this situation
could require further Board proceedings for
resolution.70
 Potential Board Jurisdiction Over Some Enti-
ties and Not Others. The Board does not have
jurisdiction over governmental employers and
employees, over railways or airlines that are
subject to the Railway Labor Act, or over
some religiously-affiliated educational institu-
tions or certain enterprises operated by Indian
tribes. If CleanCo is subject to the NLRA,
but Client A, B, or C falls within one or more
of the exempt categories identified above, the
Browning-Ferris standard would give rise to
complex questions about whether the Board
may lack jurisdiction over one or more par-
ticular “joint” employers.
2. Union Organizing Directed at Client(s). If two differ-
ent unions, rather than targeting CleanCo, engage in organ-
izing directed at Client A and Client B, respectively, with
Client C remaining nonunion, this gives rise to additional
issues and problems:
 All of the Above Issues and Problems. If the
CleanCo employees at Client A are organized
by one union, and if the CleanCo employees at
Client B are organized by a different union, then
the Browning-Ferris test would make CleanCo
and Client A the joint employer of the Clean-
Co/Client A employees, and CleanCo and Client
B the joint employer of the CleanCo/Client B
employees. In both cases, joint-employer status
(which, under Browning-Ferris, could be based
solely on indirect or reserved authority) would
give rise to all of the above problems and is-
sues, in addition to those described below.
 Employee Interchange and Multi-Location As-
signments. If different unions represent the em-
ployees of CleanCo/Client A and Clean-
Co/Client B, and if CleanCo/Client C employ-
ees are nonunion, this would create substantial
potential problems and potential conflicting lia-
bilities regarding CleanCo employees assigned
to work at all three client locations or trans-
ferred from one client’s facility to another. This
is a common situation, arising, for example,
where one CleanCo client simply is unhappy

70 Such a resolution might result, for example, from a unit clarifica-
tion petition seeking to add the new employees to the bargaining unit
without an election under the Board’s accretion doctrine, or jurisdic-
tional dispute proceedings pursuant to Sec. 10(k) of the Act.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 23
with the productivity or attitude of an assigned
employee.71
 Strikes and Picketing – “Neutral” Secondary
Boycott Protection Eliminated. Sections 8(b)(4)
and 8(e) of the Act protect neutral parties from
being subjected to secondary picketing and oth-
er threats, coercion, and restraint that have an
object of forcing one employer to cease doing
business with another. Therefore, if the Clean-
Co/Client A and CleanCo/Client B employees
were involved in a labor dispute, under the
Board’s traditional joint-employer standard Cli-
ents A and B (as non-employers) would be neu-
tral parties protected from secondary union ac-
tivity (assuming no direct and immediate con-
trol of CleanCo employees’ employment terms
by Clients A and B). Under the Browning-
Ferris standard, however, Clients A and B
would be employers right along with CleanCo
and thus subject to picketing.
 Renegotiating or Terminating Client Contracts.
It is well established that “an employer does not
discriminate against employees within the
meaning of Section 8(a)(3) by ceasing to do
business with another employer because of the
union or nonunion activity of the latter’s em-
ployees.”72 However, to the extent that Clean-
Co and Clients A, B, and C are joint employers,
then any client’s termination of CleanCo’s ser-
vices based on union-related considerations
would create a risk that the Board would find—
as it did in CNN, supra—that the contract termi-
nation constituted antiunion discrimination in
violation of Section 8(a)(3). CNN, supra, slip
op. at 40–42 (Member Miscimarra, concurring
in part and dissenting in part).

71 The potential problems caused by multi-location assignments or
employee interchange between locations could arise, for example, from
CBA provisions restricting such assignments or transfers, from union-
security provisions in different CBAs requiring dues payments based
on a person’s employment without regard to where they were em-
ployed, or from conflicting wage rates and benefits applicable at each
location. Although these issues might depend on what particular CBA
or other policies were in effect, they would obviously cause significant
burdens and potential confusion for the employees and each entity
considered a joint employer under the Browning-Ferris standard.
72 Plumbers Local 447 (Malbaff Landscape Construction), 172
NLRB 128, 129 (1968). See also Computer Associates International,
Inc., 324 NLRB 285, 286 (1997) (“[F]inding a violation of Section
8(a)(3) on the basis of an employer’s decision to substitute one inde-
pendent contractor for another because of the union or nonunion status
of the latter’s employees is inconsistent with both the language of Sec-
tion 8(a)(3) . . . and with legislative policies underlying Section 8(b) of
the Act aimed at protecting the autonomy of employers in their selec-
tion of independent contractors with whom to do business.”).
3. Existing CleanCo-Union and/or Existing Client-
Union Relationships. Additional issues and problems result
from the impact of the Browning-Ferris joint-employer test
on existing union relationships and CBAs:
 All of the Above Issues and Problems. Under
the Browning-Ferris test, it is clear that existing
collective-bargaining agreements and union re-
lationships involving CleanCo, with no mention
of Clients A or B, do not prevent Clients A and
B from having joint-employer status with
CleanCo, which would give rise to all of the is-
sues and problems described above. Again, in
CNN, discussed infra, the Board majority found
that the client, CNN, was a joint employer, even
though any bargaining between CNN and the
unions representing employees of contractor
TVS would have been at odds with applicable
labor contracts, prior Board certifications, the
services agreements between CNN and its ven-
dor (TVS), and 20 years of bargaining history in
which the employer-party was always TVS (or
one of its predecessor contractors), not CNN.
 Existing CleanCo CBA: Prospective Four-Party
Bargaining. If CleanCo was party to an existing
company-wide collective-bargaining agreement
in which CleanCo was identified as the only
employer, the Browning-Ferris test imposed an
obligation to bargain on all joint-employer enti-
ties—i.e., CleanCo and Clients A, B, and C—
even though such bargaining would depart from
express CBA language and the past practice of
CleanCo and the union.
 “Mandatory” Arbitration, Yet Never Agreed
To? If CleanCo had an existing company-wide
CBA, Browning-Ferris’ imposition of employer
status on Clients A, B, and C would not neces-
sarily bind them to the terms of the existing
CleanCo CBA. This would mean that, even
though a particular grievance may pertain to es-
sential employment terms that, according to the
Browning-Ferris majority, Clients A, B, and C
have the right to “share or codetermine,” the
CBA’s grievance arbitration procedure would
not necessarily bind Clients A, B, and C, since
they had never agreed to submit to the proce-
dure.73
 Benefit Fund Contributions and Liabilities –
Who Pays? Many existing collective-

73 See AT&T Technologies Inc. v. CWA, 475 U.S. 643, 648 (1986);
Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 582;
Steelworkers v. American Mfg. Co., 363 U.S. at 570–571; Gateway
Coal Co. v. UMW, 414 U.S. 368, 374 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
bargaining agreements contain provisions re-
garding benefit fund contributions and benefit
liabilities. If such provisions were contained in
the CleanCo CBA, then Clients A, B, and C—
when participating in the new four-way bargain-
ing described above—would predictably be con-
fronted with demands to assume liability for
such provisions. Although the Browning-Ferris
test suggests that each of Clients A, B, and C
“will be required to bargain only with respect to
such terms and conditions which it possesses the
authority to control,” 362 NLRB No. 186, slip
op. at 16, it appears clear that they would face
economic demands and potentially be subject to
a strike based on a refusal to agree to such de-
mands.
 Joint Bargaining Versus “Add-On” CBAs. If
CleanCo employees assigned to Clients A, B, or
C were organized for the first time by one or
more unions, the Browning-Ferris standard
clearly imposes a new mandatory bargaining
obligation on all joint-employer entities. Alt-
hough an existing collective-bargaining agree-
ment generally suspends a party’s obligation to
bargain for the agreement’s term, the Browning-
Ferris test, as noted above, imposes an inde-
pendent duty to bargain on every joint employer
“with respect to such terms and conditions
which it possesses the authority to control,”
which may result in separate sets of negotiations
and potential “add-on” CBAs that deviate from
the existing union agreements.
The foregoing represents only some of the complica-
tions created by the Browning-Ferris standard. And the
example is obviously simplistic because it relates only to
one service company, which has only three clients—and
in the real world, by comparison, many businesses, large
and small, rely on services provided by large numbers of
separate vendors, and many service companies have doz-
ens or hundreds of separate clients. The only thing that
is clear is that the Browning-Ferris standard does not
promote stable collective-bargaining relationships.
Moreover, how exactly are user and supplier employ-
ers to allocate the bargaining responsibilities for a single
term of employment that they are deemed to codetermine
under the Browning-Ferris joint-employer standard, one
by direct control and the other by indirect control? How
does one know who has authority at all over a term and
condition of employment under Browning-Ferris’ vague
formulation? What if two putative employer entities get
into a dispute over whether one has authority over a cer-
tain term or condition of employment? What if the puta-
tive employers are competitors? Taking the diagram
above, what if Client A and Client B are competitors and
have no economic interest in the other client coming to a
good-faith agreement with CleanCo on how much it pays
employees working for the other client? Does it make
sense for the law to attempt to create such an interest?
What if there are too many entities to come to an agree-
ment? How does bargaining work in this circumstance?
Moreover, the Browning-Ferris standard threatened to
place employers in situations where they were virtually
certain to violate the Act. Again, the Browning-Ferris
majority stated that “a joint employer will be required to
bargain only with respect to such terms and conditions
which it possesses the authority to control.” 362 NLRB
No. 186, slip op. at 16. This was intended to temper the
impact of the Browning-Ferris standard, but it only made
matters worse. By parceling out bargaining over differ-
ent employment terms to different “employers,” the
Browning-Ferris majority assumed that issues addressed
in collective bargaining are severable, as if the resolution
of one issue does not depend on the resolution of others.
This is not how contract negotiations work. Indeed, the
Board has denounced this type of segmented issue-by-
issue negotiating, when unilaterally undertaken by a par-
ty, as unlawful “fragmented bargaining.”74
Further, when multiple entities control different em-
ployment terms, the fragmented bargaining Browning-
Ferris contemplated gave rise to the following dilemma.
Section 8(a)(5) requires an employer to bargain in good
faith regarding the terms and conditions of employment
of its employees, but Section 8(a)(2) makes such bar-
gaining unlawful if the union lacks majority support
among the employer’s employees. Under Browning-
Ferris, a putative joint employer risked violating Section
8(a)(5) if it failed or refused to bargain over a particular

74 See, e.g., E.I. Dupont de Nemours & Co., 304 NLRB 792, 792 fn.
1 (1991) (“What we find unlawful in the Respondent’s conduct was its
adamant insistence throughout the entire course of negotiations that its
site service operator and technical assistant proposals were not part of
the overall contract negotiations, and, therefore, had to be bargained
about totally separately not only from each other but from all the other
collective bargaining agreement proposals. We find this evinced frag-
mented bargaining in contravention of the Respondents duty to bargain
in good faith.”); see also NLRB v. Patent Trader, 415 F.2d 190, 198 (2d
Cir. 1969), modified on other grounds 426 F.2d 791 (2d Cir. 1970)
(When a party “removes from the area of bargaining . . . [the] most
fundamental terms and conditions of employment (wages, hours of
work, overtime, severance pay, reporting pay, holidays, vacations, sick
leave, welfare and pensions, etc.),” it has “reduced the flexibility of
collective bargaining, [and] narrowed the range of possible compromis-
es with the result of rigidly and unreasonably fragmenting the negotia-
tions.”). At the very least, an astonishing degree of cooperation among
multiple “employers”—employers who cannot be assumed to share
common goals in collective bargaining—would be necessary under
Browning-Ferris to avoid fragmented bargaining.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 25
mandatory bargaining subject it believed it did not con-
trol, if it was later determined that it did exercise suffi-
cient control to require that entity to bargain regarding
the subject. On the other hand, that same entity risked
violating Section 8(a)(2) if it bargained over a particular
employment term, if it was later determined that the enti-
ty lacked sufficient control over that term to make it an
“employer” of the unit employees as to that term.
Moreover, while it is well established that the burden
to prove joint-employer status rests on the General Coun-
sel,75 if multiple entities arguably constitute a joint em-
ployer, and one entity is alleged to have unlawfully failed
to bargain over particular terms of employment, the
Browning-Ferris standard effectively placed the burden
of proof on that entity to establish that it did not control
those particular employment terms. In sum, Browning-
Ferris gave rise to unresolved questions as to (i) which
entities are the “employer,” (ii) which entities must or
must not engage in bargaining over particular employ-
ment terms, and even (iii) what party—the putative joint
employer or the General Counsel—bears the burden of
proof regarding this assortment of issues.
This scenario was made all the worse by the fact that
years of Board litigation would have been necessary be-
fore parties would learn whether (i) they unlawfully
failed to participate in bargaining with another employer
and its employees’ union, or (ii) they unlawfully injected
themselves into such bargaining because their commer-
cial relationship with that employer was insufficient to
make them a joint employer. Nor is the Board permitted
to engage in the economic analysis needed to sort out the
plethora of arm’s-length, company-to-company relation-
ships affected by the Browning-Ferris joint-employer
test. The Board’s Division of Economic Research was
abolished 75 years ago, and Section 4(a) of the Act—
adopted by Congress in 1947—prohibits the Board from
having any agency personnel engage in “economic anal-
ysis.”76 Additionally, the Board lacks the authority to
impose labor contract terms on parties,77 and nothing in

75 See, e.g., Hobbs & Oberg Mining Co., 297 NLRB 575, 586 (1990)
(General Counsel’s burden to prove joint-employer status), enfd. 940
F.2d 1538 (10th Cir. 1991), cert. denied 503 U.S. 959 (1992).
76 Sec. 4(a) states in part: “Nothing in this Act shall be construed to
authorize the Board to appoint individuals . . . for economic analysis.”
This language was added to the NLRA as part of the Labor Manage-
ment Relations Act (LMRA), 61 Stat. 136, Sec. 101 (amending NLRA
Sec. 4(a)) (1947). The enactment of Sec. 4(a) occurred after the Board
abolished its Division of Economic Research in 1940. See 93 Cong.
Rec. 6661, reprinted in 2 LMRA Hist. 1577 (June 6, 1947) (analysis of
H.R. 3020). See generally John E. Higgins, Jr., Labor Czars–
Commissars–Keeping Women in the Kitchen–The Purpose and Effects
of the Administrative Changes Made by Taft-Hartley, 47 CATH. U. L.
REV. 941, 951–952 (1998).
77 Sec. 8(d); H.K. Porter Co. v. NLRB, 397 U.S. at 99.
the Act authorizes the Board to impose requirements on
companies regarding how they must arrange or rearrange
themselves.
The extensive changes adopted in Browning-Ferris
were unsupported by any adequate showing that existing
law was deficient or contrary to Congressional mandate
as reflected in the Act. The Browning-Ferris majority
cited no evidence showing that employees in contingent
or comparable employment situations have been unable
to bargain with their undisputed employer. The Brown-
ing-Ferris majority used the phrase “meaningful bargain-
ing” numerous times, but the majority’s premise was that
bargaining fails to be “meaningful” whenever the em-
ployer’s business relationships influence matters under
negotiation. One does not establish that the Section 7
rights of employees of supplier employers have been
denied merely by citing a large number of employees
whose terms and conditions of employment might be
affected in some way by a user entity, plus Board cases
finding that the user entity was not a joint employer of
the supplier’s employees and thus had no duty to bargain
with the union representing those employees. How do
we know that employees have been unable to engage in
“meaningful bargaining” with the supplier employer?
Under the Browning-Ferris test, it is possible to find that
“meaningful bargaining” cannot take place with a suppli-
er employer alone if a user entity possesses but never
exercises contractually reserved control over even a sin-
gle “essential” aspect of employment. Such a definition
of meaningful bargaining has never been the law, and it
cannot be reconciled with business practices that have
been in existence since long before the Act.
In addition, it is difficult, if not impossible, to recon-
cile Browning-Ferris’ reasoning with the Board’s ra-
tionale in Management Training, 317 NLRB 1355
(1995), which addressed whether to assert discretionary
jurisdiction over a private employer contracting for busi-
ness with an exempt governmental entity. The Board in
Management Training modified prior caselaw and held
that it would no longer decline to assert jurisdiction in
circumstances where the private employer lacks control
of what had been deemed essential terms of employment.
It reasoned that “[b]ecause of commercial relationships
with other parties, an inability to pay due to financial
constraints, and competitive considerations which cir-
cumscribe the ability of the employer to grant particular
demands, the fact is that employers are frequently con-
fronted with demands concerning matters which they
cannot control as a practical matter or because they
have made a contractual relationship with private par-
ties or public entities.” Id. at 1359 (emphasis added).
Quite obviously, under Management Training the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
believes that employees and their exclusive bargaining
representative can still engage in meaningful bargaining
under the Act even with an employer that lacks control
over a substantial number of essential terms of employ-
ment that are controlled “as a practical matter” by anoth-
er entity.
C. Browning-Ferris Dramatically Changed Labor Law
Sales and Successorship Principles and Discouraged
Efforts to Rescue Failing Companies and
Preserve Employment.
Browning-Ferris’ expansion of the definition of em-
ployer also altered the landscape of successorship law
under the Act. It is well established that successor em-
ployers,78 although they must recognize and bargain with
the union representing the predecessor’s employees in
certain circumstances, are not obligated to adopt the pre-
decessor’s collective-bargaining agreement and have the
right to unilaterally set different initial terms and condi-
tions of employment.79 NLRB v. Burns International
Security Services, Inc., 406 U.S. 272, 287–288, 294–295
(1972). This rule “careful[ly] safeguards the rightful
prerogative of owners independently to rearrange their
businesses.” Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. at 40 (internal quotations omitted). But
the policy concerns underlying the rule of Burns run
deeper than that:
[H]olding either the union or the new employer bound
to the substantive terms of an old collective-bargaining
contract may result in serious inequities. A potential
employer may be willing to take over a moribund busi-
ness only if he can make changes in corporate structure,
composition of the labor force, work location, task as-
signment, and nature of supervision. Saddling such an
employer with the terms and conditions of employment
contained in the old collective-bargaining contract may
make these changes impossible and may discourage
and inhibit the transfer of capital. On the other hand, a
union may have made concessions to a small or failing

78 An employer is a successor of its predecessor under the Act when
there is “substantial continuity between the enterprises,” the successor
hired as a majority of its employees the predecessor’s employees, and
the bargaining unit is still appropriate. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 43–52 (1987).
79 There is a limited exception to this general rule when “‘it is per-
fectly clear that the new employer plans to retain all of the employees
in the unit,’” unless the successor “clearly announce[s] its intent to
establish a new set of conditions prior to inviting former employees to
accept employment.” Spruce Up Corp., 209 NLRB 194, 195 (1974)
(quoting NLRB v. Burns International Security Services, Inc., 406 U.S.
272, 294–295 (1972)), enfd. 529 F.2d 516 (4th Cir. 1975). However, a
so-called “perfectly clear” successor employer is still not bound by the
predecessor’s labor contract. It must only adhere to terms established
by the contract while negotiating new terms with the incumbent union.
employer that it would be unwilling to make to a large
or economically successful firm. The congressional
policy manifest in the Act is to enable the parties to ne-
gotiate for any protection either deems appropriate, but
to allow the balance of bargaining advantage to be set
by economic power realities. Strife is bound to occur if
the concessions that must be honored do not corre-
spond to the relative economic strength of the parties.
Burns, 406 U.S. at 287–288.
Under the expansive Browning-Ferris joint-employer
standard, many user employers would be deemed joint
employers of their supplier employers’ employees. Re-
bidding contracts has been a common feature of the user-
and supplier-employer market. Predictably under
Browning-Ferris, it would have been less common be-
cause deeming the user employer to be a joint employer
would make terminating or rebidding the contract with
the supplier employer much more difficult. The user
employer would often have a duty to bargain over the
decision to lay off the employees or to subcontract those
jobs to another supplier employer. See Fibreboard Pa-
per Products Corp. v. NLRB, supra, 379 U.S. at 215
(1964); CNN, supra, 361 NLRB 439, 455. Assuming the
user employer does contract with a new supplier employ-
er that would otherwise be a Burns successor able to set
its own initial employment terms, the user employer,
under the Browning-Ferris standard, would likely have
been deemed a joint employer with the new supplier em-
ployer as well. That user employer’s ongoing bargaining
obligation spanning the two supplier employers would
prevent the new supplier employer from setting different
terms and conditions of employment than its predecessor
had. See Whitewood Maintenance Co., supra, 292
NLRB at 1168–1169 (contractor that substituted one
subcontractor for another jointly employed both the old
and new subcontractors’ employees, so the new subcon-
tractor could not set its own initial terms).
Similarly, when a predecessor’s union-represented
employees apply for employment with a successor, the
successor cannot lawfully extend recognition to the un-
ion unless and until it has hired a “substantial and repre-
sentative complement” of employees.80 In CNN, supra,
two unions represented employees of CNN’s contractor,
TVS, continuing a 20-year history in which unionized
contractors supplied technical employees to CNN, where
only the contractor, not CNN, was considered the “em-
ployer.” When CNN decided to stop using contractor
employees and to directly hire its own technical work-
force, CNN as a successor would have violated the Act if
it recognized and bargained with the TVS unions before

80 Fall River Dyeing Corp. v. NLRB, 482 U.S. at 47–48.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 27
hiring former employees of TVS as a “substantial and
representative complement” of its own technical work-
force. However, the CNN majority’s expansive joint-
employer finding converted CNN into an “employer” of
TVS’ employees before it hired any of its own technical
employees. Based on this joint-employer finding, the
Board majority determined that CNN—before it decided
to terminate its relationship with TVS, and thus even
before it notified TVS that it was terminating the rela-
tionship—was required to notify the TVS unions and
engage in bargaining with them over whether CNN
might terminate the TVS relationship and hire its own
workforce.
Then-Member Miscimarra, in his CNN dissent, stated
that employer status “does not arise as the result of spon-
taneous combustion,” and he explained that the joint-
employer finding the majority applied to CNN before it
hired its own workforce was irreconcilable with the par-
ties’ understandings and existing agreements:
Nothing in such a scenario would promote stable bar-
gaining relationships. Rather, CNN’s actions—taken
as an “employer” of the TVS technical personnel—
would have directly contradicted the then-existing
TVS-NABET collective-bargaining agreements (which
identified TVS, not CNN, as the employer). CNN’s ac-
tions would have violated the CNN-TVS Agreements,
which stated . . . that TVS employees “are not employ-
ees of [CNN], and shall not be so treated at any
time”. . . . Finally, CNN’s actions would have exhibited
a total disregard for the elaborate body of law regarding
“successorship” and related business changes that has
been the subject of nearly a dozen Supreme Court cases
and innumerable Board decisions.81
The Board majority in CNN, although ostensibly ap-
plying the traditional joint-employer test, relied on fac-
tors similar to those subsequently embraced by the
Browning-Ferris majority. Thus, the damage inflicted
on successorship law by the CNN decision was exacer-
bated by Browning-Ferris. That decision, if not over-
ruled, would injure the nation’s economy by hindering
the ability of user employers to freely terminate or rebid
client contracts and of new supplier employers to set
different initial employment terms. Simply put, the
Browning-Ferris standard sent a message to user em-
ployers to never contract with unionized supplier firms in
the first place to avoid being trapped in client contracts
that cannot be terminated without bargaining with the
union to agreement or impasse. On the other side,

81 CNN America, supra, slip op. at 38–39 (Member Miscimarra, con-
curring in part and dissenting in part) (footnote and emphasis omitted).
Browning-Ferris injured competition within the supplier-
employer market: potential bidders for contracts where
the incumbent supplier employer is unionized could not
freely compete with the incumbent supplier on labor
costs, as the new supplier employer would likely be tied
to the same terms. The Browning-Ferris majority thus
applied the Act in a manner directly contrary to the poli-
cies underlying the successorship doctrine as articulated
by the Supreme Court in Burns.
D. Browning-Ferris Threatened Existing Franchising
Arrangements in Contravention of Board Precedent and
Trademark Law Requirements.
Of the thousands of business entities with various con-
tracting arrangements that suddenly found themselves to
be joint employers under the Browning-Ferris standard,
franchisors stand out. According to the International
Franchise Association (IFA), “in 2012 there were
750,000 franchise establishments in the United States
employing 8.1 million workers, generating a direct eco-
nomic output of $769 billion. These businesses account
for approximately 3.4 percent of America’s gross domes-
tic product.”82
For many years, the Board has generally not held fran-
chisors to be joint employers with their franchisees, re-
gardless of the degree of indirect control retained.83 The
Browning-Ferris majority did not mention, much less
discuss, the potential impact of its new standard on fran-
chising relations, but it was almost certainly momentous
and hugely disruptive. Indeed, absent any discussion,
Browning-Ferris left open whether the majority there
even agreed with the General Counsel’s position that the
Board should continue to exempt franchisors from joint-
employer status to the extent their indirect control over
employee working conditions is related to their legiti-
mate interest in protecting the quality of their product or
brand. See, e.g., Love’s Barbeque Restaurant, 245
NLRB 78, 120 (1978) (franchisor not a joint employer
where franchisees were required to prepare and cook
food a certain way because, among other things, the fran-
chisor established the requirements to “keep the quality
and good will of [the franchisor’s] name from being
eroded”) (internal quotations and citations omitted), enfd.
in relevant part 640 F.2d 1094 (9th Cir. 1981). Given the

82 Amicus Br. of IFA in Browning-Ferris at 1.
83 See, e.g., Speedee 7-Eleven, 170 NLRB 1332 (1968) (franchisor
not a joint employer despite a policy manual that described “in meticu-
lous detail virtually every action to be taken by the franchisee in the
conduct of his store”); Tilden, S. G., Inc., 172 NLRB 752 (1968) (fran-
chisor not a joint employer, even though the franchise agreement dic-
tated “many elements of the business relationship,” because the fran-
chisor did not “exercise direct control over the labor relations of [the
franchisee]”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
breadth of the Browning-Ferris test and its supporting
rationale, there was reason for concern that a Board ap-
plying Browning-Ferris would have deemed a franchisor
with this type of indirect control a joint employer of its
franchisees’ employees.
The Browning-Ferris test appears to require specific
analysis of whether the franchisor shares or codetermines
the manner and method of performing the work. How-
ever, in many if not most instances, franchisor operation-
al control has nothing to do with labor policy but rather
compliance with federal statutory requirements to main-
tain trademark protections. “It is required that the owner
of the mark should set up the standards or conditions
which must be met before another is permitted to use the
certification mark and the owner should permit the use of
the mark by others only when they meet those standards
or conditions.” State of Fla. v. Real Juices, Inc., 330 F.
Supp. 428, 432 (M.D. Fla. 1971). As one court ex-
plained:
Without the requirement of control, the right of a
trademark owner to license his mark separately from
the business in connection with which it has been used
would create the danger that products bearing the same
trademark might be of diverse qualities. If the licensor
is not compelled to take some reasonable steps to pre-
vent misuses of his trademark in the hands of others the
public will be deprived of its most effective protection
against misleading uses of a trademark. The public is
hardly in a position to uncover deceptive uses of a
trademark before they occur and will be at best slow to
detect them after they happen. Thus, unless the licen-
sor exercises supervision and control over the opera-
tions of its licensees the risk that the public will be un-
wittingly deceived will be increased and this is precise-
ly what the Act is in part designed to prevent. Clearly
the only effective way to protect the public where a
trademark is used by licensees is to place on the licen-
sor the affirmative duty of policing in a reasonable
manner the activities of his licensees.
Stanfield v. Osborne Indus., Inc., 839 F. Supp. 1499, 1504
(D. Kan. 1993), affd. 52 F.3d 867 (10th Cir. 1995), abrogat-
ed on other grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014). If a franchisor
fails to maintain sufficient control over its marks, it is con-
sidered to have engaged in “naked franchising” and thereby
to have abandoned the mark.84 “The critical question in

84 Id.; see 15 U.S.C. § 1064(5)(A). See also Barcamerica Interna-
tional USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 596 (9th Cir.
2002) (“It is well-established that ‘[a] trademark owner may grant a
license and remain protected provided quality control of the goods and
services sold under the trademark by the licensee is maintained.’
determining whether a licensing program is controlled suffi-
ciently by the licensor to protect his mark is whether the
licensees’ operations are policed adequately to guarantee the
quality of the products sold under the mark.” General Mo-
tors Corp. v. Gibson Chem. & Oil Corp., 786 F.2d 105, 110
(2d Cir. 1986). The necessity of the franchisor to police the
“manner and method” of the franchisee is paramount.
“‘The purpose of the Lanham Act . . . is to ensure the integ-
rity of registered trademarks, not to create a federal law of
agency.’ The scope of a licensor’s duty of supervision of a
licensee who has been granted use of a trademark must be
commensurate with this limited goal.” Transgo, Inc. v. Ajac
Transmission Parts Corp., 768 F.2d 1001, 1018 (9th Cir.
1985) (quoting Oberlin v. Marlin American Corp., 596 F.2d
1322, 1327 (7th Cir. 1979)).
These cases demonstrate that one important aspect of
the franchising relationship is the franchisee’s ability to
reap the benefits of manifesting to the customer the ap-
pearance of a seamless enterprise through the use and
maintenance of the franchisor’s trademark. Federal fran-
chise law recognizes this benefit and requires that the
franchisor protect the mark by maintaining enough con-
trol over the franchisee to protect consumers. However,
even though franchise law requires some degree of over-
sight and control by the franchisor over its franchisees, it
was never the intent of Congress to make franchisors
joint employers of their franchisees’ employees. The
Browning-Ferris joint-employer standard threatened to
do just that whenever a franchisor complies with the re-
quirements of another Federal statute that is totally unre-
lated to labor relations. The Board has been repeatedly
reminded that it “has not been commissioned to effectu-
ate the policies of the Labor Relations Act so single-
mindedly that [we] may wholly ignore other and equally
important Congressional objectives.” Southern Steam-
ship Co. v. NLRB, 316 U.S. 31, 47 (1942). Rather than
providing a “careful accommodation of one statutory
scheme to another,” the Browning-Ferris decision placed
“excessive emphasis upon [the Board’s] immediate
task.” Id.

Moore Bus. Forms, Inc. v. Ryu, 960 F.2d 486, 489 (5th Cir.1992). But
‘[u]ncontrolled or “naked” licensing may result in the trademark ceas-
ing to function as a symbol of quality and controlled source.’ McCar-
thy on Trademarks and Unfair Competition § 18:48, at 18-79 (4th ed.
2001). Consequently, where the licensor fails to exercise adequate
quality control over the licensee, ‘a court may find that the trademark
owner has abandoned the trademark, in which case the owner would be
estopped from asserting rights to the trademark.’ Moore, 960 F.2d at
489.”).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 29
E. Browning-Ferris Undermined Parent-Subsidiary Re-
lationships in Contravention of Board Precedent.
In most areas of the law, it is widely recognized that
parent and subsidiary corporations are separate entities.
The Board, which has developed sophisticated legal doc-
trines for the purpose of detecting when ostensibly sepa-
rate companies are in truth either created to evade obliga-
tions under the Act (the alter-ego doctrine) or are so inte-
grated that they function as one (the single-employer
doctrine), has recognized this principle repeatedly. For
example, in Dow Chemical, 326 NLRB 288 (1998), a
bipartisan Board majority reaffirmed the longstanding
rule under the single-employer doctrine that typical par-
ents and subsidiaries are not considered a single employ-
er for collective-bargaining purposes. See also, e.g.,
Western Union, 224 NLRB 274 (1976), affd. sub nom.
United Telegraph Workers v. NLRB, 571 F.2d 665 (D.C.
Cir. 1978), cert. denied 439 U.S. 827 (1978). Indeed, the
presumption of separateness for purposes of the Act is so
strong that it also extends to unincorporated divisions
that are operated independently from the company as a
whole. See, e.g., Los Angeles Newspaper Guild, Local
69 (Hearst Corporation), 185 NLRB 303, 304 (1970),
enfd. 443 F.2d 1173 (9th Cir. 1971). The Board honors
the separateness of parents and subsidiaries even as it
recognizes that a subsidiary is, of course, under the po-
tential control of its parent. In other words, potential
control is not enough to find that a parent is the same
employer with its subsidiary for purposes of labor law:
Common ownership by itself indicates only potential
control over the subsidiary by the parent entity; a sin-
gle-employer relationship will be found only if one of
the companies exercises actual or active control over
the day-to-day operations or labor relations of the other.
Dow, 326 NLRB at 288 (emphasis in original). The Brown-
ing-Ferris majority turned this principle on its head, and its
wholesale adoption of the “potential control” standard
risked treating parents and subsidiaries as joint employers.
To our reckoning, no Board had ever taken this leap before.
Indeed, the Browning-Ferris test—which applied to admit-
tedly separate and independent companies—embraced a
more onerous “control” standard than the one the Board
applies to determine whether two apparently separate com-
panies are actually integrated with one another. This made
no sense.
Whatever the logical contradictions in Browning-
Ferris, the result was serious. The standard adopted
there threatened to sweep every parent and affiliate com-
pany in America into being the joint employer of its sub-
sidiary’s employees, with the concomitant bargaining
obligations, the loss of secondary-employer protection
from union strikes (discussed below), and all the other
deleterious results mentioned above. Before upending
decades of labor law precedent and probably centuries of
precedent in corporate law, the Board needed a mandate
from Congress rather than purporting to “find” it in our
decisional law. Of course there is no such mandate,
which further supports our decision today to restore the
“direct and immediate control” standard. If Congress
had wanted the Board to turn the world of corporate
identity upside down, it would have expressly told us so.
VII. BROWNING-FERRIS CONFLICTS WITH CONGRESSIONAL
INTENT TO INSULATE NEUTRAL EMPLOYERS FROM
SECONDARY ECONOMIC COERCION.
Not only did the Browning-Ferris test impermissibly
expand and confuse bargaining obligations under Sec-
tions 8(a)(5) and 8(d), it also did violence to other provi-
sions of the Act that depend on a determination of who
is, and who is not, the “employer.” Chief among them is
Section 8(b)(4)(ii)(B), which prohibits secondary eco-
nomic protest activity, such as strikes, boycotts, and
picketing. That section of the Act “prohibits labor organ-
izations from threatening, coercing, or restraining a neu-
tral employer with the object of forcing a cessation of
business between the neutral employer and the employer
with whom a union has a dispute,” but it does not prohib-
it striking or picketing the primary employer, i.e., the
employer with whom the union does have a dispute.
Teamsters Local 560 (County Concrete), 360 NLRB
1067, 1067 (2014). In enacting Section 8(b)(4)(ii)(B),
Congress intended to “preserv[e] the right of labor organ-
izations to bring pressure to bear on offending employers
in primary labor disputes and . . . [to] shield[] unoffend-
ing employers and others from pressures in controversies
not their own.” NLRB v. Denver Building Trades Coun-
cil, supra, 341 U.S. at 692.
An entity that is a joint employer with the employer
involved in a labor dispute is equally subject to union
economic protest activities. See Teamsters Local 688
(Fair Mercantile), 211 NLRB 496, 496–497 (1974) (un-
ion’s picketing of a retailer did not violate Section
8(b)(4)(ii)(B) because retailer was the joint employer of
employees of a delivery contractor with which the union
had a labor dispute). To put this in practical terms, be-
fore Browning-Ferris a union in a labor dispute with a
supplier employer typically could not picket a user entity
in order to urge that entity’s customers to cease doing
business with the user, with the object of forcing the user
to cease doing business with the supplier employer.85

85 Of course, the user- and supplier-employer scenario often raises
common situs issues as addressed in Sailors Union (Moore Dry Dock),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Likewise, a union with a labor dispute with one franchi-
see typically could not picket the franchisor and all of its
other franchisees.
Browning-Ferris’ expansion of the joint-employer
doctrine swept many more entities into primary-
employer status as to labor disputes that are not directly
their own. As a result, unions were enabled to picket or
apply other coercive pressure to either or both of the joint
employers as they chose. This limited the Act’s second-
ary-boycott prohibitions in a manner Congress could not
have intended. The targeted joint employer may not
have direct control or even any control over the particular
terms or conditions of employment that are the genesis of
the labor dispute. Moreover, the economic consequences
of this contraction of secondary-boycott protection are
far reaching. For example, a union could picket all of the
user entity’s facilities even though the supplier employer
only provides services at one. Further, assuming that a
franchisor exerts similar indirect control over each fran-
chisee, a union could picket the franchisor and all fran-
chisees even though its dispute only involves the em-
ployees of one franchisee.86
It does not end there. As previously stated, numerous
contractual provisions relied upon by the Browning-
Ferris majority are typically included in a residential
renovation contract—i.e., the contractor’s employees
cannot start work before a certain hour, they must finish
work by a certain hour, they cannot use the bathrooms in
the house, they have to park their vehicles in certain loca-
tions, and so forth. Suppose that the annual revenues of
the company with whom John and Jane Homeowners’
contract meet the Board’s discretionary standard for as-
serting jurisdiction, not at all an unlikely possibility.
Then suppose that a union initiates an area standards
wage protest against this contractor. One day, the
Homeowners open their front door to discover pickets
patrolling the sidewalk in front of their house. In the
joint-employer world of Browning-Ferris, the Home-
owners are a lawful target for this protest activity. Un-
ions may not have any interest in bringing the homeown-
ers to the bargaining table, but they may be more than
eager to maximize economic injury to the primary em-
ployer by expanding the cease-doing-business pressure to
as many clients of that employer as possible. Congress

92 NLRB 547 (1950), and its progeny, but explicitly targeting the sec-
ondary employer is blatantly unlawful.
86 Going back to the CleanCo diagram above for an example, Client
A likely has no control over what goes on at the premises of Client C.
More importantly, there is no underlying economic relationship be-
tween the two that could supply even a remotely rational foundation for
the Act to allow economic weapons like strikes, picketing, etc. at Client
A to convince it to use its obviously non-existent “power” over Client
C in a labor dispute involving CleanCo employees posted at Client C.
did not intend that every entity with some degree of eco-
nomic relationship with the employer-disputant be
thrown into its labor dispute. The Act is supposed to
encourage labor peace, and to this end Congress enacted
Sections 8(b)(4) and 8(e) to prevent the very type of lim-
itless economic warfare the Browning-Ferris decision
fomented.
The Browning-Ferris majority’s expansive definition
of joint-employer status posed particular questions about
its applicability to common situs work in the construction
industry. As previously stated, the Supreme Court has
held that the fact “the contractor and subcontractor were
engaged on the same construction project, and that the
contractor had some supervision over the subcontractor’s
work, did not eliminate the status of each as an inde-
pendent contractor or make the employees of one the
employees of the other.”87 The breadth of the Browning-
Ferris majority test and its holding that “reserved” con-
trol, by itself, may result in joint-employer status cannot
be reconciled with the Supreme Court’s decision—more
than 50 years ago—that a general contractor in the con-
struction industry is not an “employer” of subcontractor
employees, even though general contractors obviously
have “reserved” control over most if not all work per-
formed by subcontractor employees on construction pro-
jects.88
VIII. THE JOINT-EMPLOYER QUESTION PRESENTED IN
THIS CASE
“The Board’s usual practice is to apply new policies
and standards retroactively ‘to all pending cases in what-
ever stage.’” SNE Enterprises, 344 NLRB 673, 673
(2005) (quoting Deluxe Metal Furniture Co., 121 NLRB
995, 1006–1007 (1958)). The Board considers the fol-
lowing factors when determining whether retroactive
application would cause manifest injustice: “the reliance
of the parties on preexisting law, the effect of retroactivi-
ty on accomplishment of the purposes of the underlying
law which the decision refines, and any particular injus-
tice to the losing party under the retroactive application
of the change of law.” Pattern Makers (Michigan Model
Mfrs.), 310 NLRB 929, 931 (1993) (citing NLRB v.
Bufco Corp., 899 F.2d 608, 609 (7th Cir. 1990)). After

87 Denver Building Trades, 341 U.S. at 692.
88 There is a further question. Denver Building Trades involved a
situation in which a subcontractor was the primary employer target of
protest, and the general contractor was the neutral employer. In Mark-
well & Hartz, the Board applied the same principles of separateness and
neutrality when the general contractor was the primary employer in a
labor dispute, thereby finding all subcontractors at the common situs to
be neutrals. Building & Construction Trades Council (Markwell &
Hartz), 155 NLRB 319 (1965), enfd. 387 F.2d 79 (5th Cir. 1967). The
breadth of the Browning-Ferris test threatened to undermine this deci-
sion as well.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 31
consideration of these factors, we find that retroactive
application in this case and in all pending cases would
not result in manifest injustice. First, there has been no
showing that Brandt and/or Hy-Brand relied on Brown-
ing-Ferris when structuring or maintaining their relation-
ship.89 Second, retroactive application here would fur-
ther the purposes of the Act and the incorporated com-
mon law by ensuring that Brandt, Hy-Brand, and em-
ployers in other pending cases that present a joint-
employer issue are not held jointly and severally liable
based only on proof of joint control that is reserved, indi-
rect, and/or “limited and routine.” Finally, we find that
retroactive application of the restored joint-employer
standard will not result in any particular injustice to the
losing parties, here Brandt and Hy-Brand, because the
restored standard places a heavier burden of proof on the
General Counsel than the Browning-Ferris standard we
overrule today.
Applying the joint-employer standard that existed prior
to Browning-Ferris, we find that the record establishes
that Brandt and Hy-Brand constitute a joint employer,
which means they are jointly and severally liable for
remedying the unfair labor practices committed in the
instant case. Substantial evidence supports a finding that
the two entities exercised joint control over essential em-
ployment terms involving Brandt and Hy-Brand employ-
ees, the control was direct and immediate, and it was not
limited and routine. Terence Brandt, who served as the
Corporate Secretary for both companies, was directly
involved in the decisions at both companies to discharge
all seven of the discriminatees. Moreover, he identified
himself as an official of Brandt when he signed letters
effectively informing two of the Hy-Brand strikers that
their employment had been terminated. Also, Terence
Brandt is the primary individual making hiring decisions
at Brandt, and he also hired Randy Sackville to be Hy-
Brand’s General Manager. Employees of both compa-
nies participate in the same 401(k) and health benefit
plans, and they are covered by the same workers com-
pensation policy. Hy-Brand employees and Brandt em-
ployees attend common mandatory training sessions and
an annual corporate meeting where common employment
policies are reviewed. Such common employment poli-
cies, drafted by Terence Brandt and Brandt Human Re-
sources Director Lisa Coyne, include an equal employ-
ment opportunity policy, a workplace harassment policy,
an FMLA policy, and a drug-free workplace policy.
Thus, the record establishes that the joint control de-
scribed above was actually exercised, not merely re-

89 While the General Counsel may have relied on Browning-Ferris
when litigating this case, the General Counsel prevails, for the reasons
stated below, under the standard that we restore today.
served, and that it had a direct and immediate impact on
Brandt and Hy-Brand employees.
IX. RESPONSE TO THE DISSENT
One would never guess that two short years ago, our
dissenting colleagues were part of the Board majority
that, in Browning-Ferris, implemented sweeping changes
in the Board’s joint-employer doctrine. Then, our dis-
senting colleagues had no reluctance to overrule then-
existing Board law based on their conclusion that it was
“out of step with changing economic circumstances,”
including the “recent dramatic growth in contingent em-
ployment relationships.”90 In Browning-Ferris, our dis-
senting colleagues announced they had “decided to revis-
it and to revise the Board’s joint-employer standard.”91
Quoting the Supreme Court, our colleagues emphasized
that federal regulatory agencies “‘are supposed, within
the limits of the law and of fair and prudent administra-
tion, to adapt their rules and practices to the Nation’s
needs in a volatile, changing economy.’”92 Now, our
colleagues raise an array of objections, most of which are
contradicted by their own actions when deciding Brown-
ing-Ferris.
Most of our colleagues’ contentions have been effec-
tively addressed above. However, several additional
points are relevant here.
First, there is no merit in the claim that the Board, in
the instant case, has failed to satisfy requirements set
forth in the Administrative Procedures Act, nor has the
Board failed to engage in “reasoned decisionmaking.”
Our colleagues quote Allentown Mack Sales and Service,
Inc. v. NLRB, 522 U.S. 359, 374 (1998), where the Su-
preme Court stated: “Not only must an agency’s decreed
result be within the scope of its lawful authority, but the
process by which it reaches that result must be logical
and rational.” Id. We agree with the Court’s statement,
as indeed we must. However, we disagree with our dis-
senting colleagues’ suggestion that the Board’s decision
in the instant case fails the “logical and rational” test.
Obviously, a decision reflecting the views of a Board
majority does not become “illogical” or “irrational”
merely because dissenting members disagree with the
outcome. If this were the standard, then Browning-
Ferris itself failed the “logical and rational” test, based
on the dissenting views of Chairman (then-Member)
Miscimarra and former Member Johnson in that case.

90 Browning-Ferris, supra fn. 2, 362 NLRB No. 186, slip op. at 1.
91 Id., slip op. at 1–2.
92 Id., slip op. at 1 (footnote omitted) (quoting American Trucking
Assns. v. Atchison, T. & S.F. Ry. Co., 387 U.S. 397, 416 (1967)). See
also UGL-UNICCO Service Co., 357 NLRB 801, 801 (2011) (quoting
American Trucking Assns., supra, and revising Board’s successor-bar
doctrine).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
See Browning-Ferris, supra fn. 2, 362 NLRB No. 186,
slip op. at 21–49 (Members Miscimarra and Johnson,
dissenting).93
Second, there is no greater merit in our dissenting col-
leagues’ objection that the joint-employer issue is not
appropriately before the Board. Here, our colleagues
claim that we are straining to address and reverse Brown-
ing-Ferris and that we should avoid resolving the joint-
employer issue here until judicial appeals in Browning-
Ferris have been exhausted. These arguments are unper-
suasive. In the instant case, the administrative law judge
squarely found that Respondents Brandt and Hy-Brand
were joint employers. And regarding that issue, the
judge cited a single case: the Board’s 2015 decision in
Browning-Ferris.94 Indeed, the judge focused specifical-
ly on the changes in joint-employer doctrine effectuated
by Browning-Ferris. Thus, he explained: “The Board
does not require actual control over essential terms and
conditions of employment; it is sufficient that the alleged
joint employer has the authority to do so.” Moreover,
the judge pointed out that in Browning-Ferris, “the
Board overruled prior precedent to the extent those cases
held that mere authority to control employees’ terms and
conditions of employment was an inadequate indicia of
joint employer status unless the authority was exercised
directly and immediately and not in a limited and routine
manner.” And there is no question that the Respondents
filed exceptions to the judge’s joint-employer finding.
Of course, it is no surprise that our dissenting colleagues
argue in favor of deciding this case on a basis that would
prevent the Board from overruling Browning-Ferris:
they were part of the Browning-Ferris majority that erro-
neously, in our view, overturned then-existing legal prin-
ciples. However, the Board is presented here with the
question of whether the judge correctly concluded, based
on Browning-Ferris, that the Respondents are joint em-
ployers. Therefore, we have the responsibility and obli-
gation to address this question, and in doing so, to deter-
mine whether Browning-Ferris correctly stated the appli-
cable standard. We have concluded that it did not, based

93 The NLRB functions in a manner that is very different from the
U.S. Department of Labor because the two agencies enforce different
statutes and have different structures, procedures, and practices. This
renders immaterial our dissenting colleagues’ reliance on comments by
Secretary of Labor Alexander Acosta concerning “public debate, dis-
cussion, and comment” regarding joint-employer status.
94 When addressing the joint-employer issue in the instant case, the
judge stated: “In BFI/Newby Island Recyclery, 362 NLRB No. 186, slip
op. at 15 (2015), the Board described the following joint employer test:
‘The Board may find that two entities . . . are joint employers of a sin-
gle work force if they are both employers within the meaning of the
common law, and if they share or codetermine those matters governing
the essential terms and conditions of employment’” (footnotes omitted;
paragraph structure modified).
on the common law and sound policy reasons outlined at
length above.95
Third, there is no merit in our dissenting colleagues’
protest that we cannot or should not overrule Browning-
Ferris in this case without inviting amicus briefing. The
Board has broad discretion with respect to whether to
invite briefing prior to adjudicating a major issue. As we

95 Equally without merit is our colleagues’ position that the Board
should refrain from resolving the joint-employer issue in this case, and
from overruling Browning-Ferris, because appeals have not been ex-
hausted in the Browning-Ferris case. For several reasons, this conten-
tion is without merit. First, the parties in the instant case and other
parties affected by the Browning-Ferris decision are entitled to the
prompt resolution of the joint-employer issue presented here, without
regard to pending appeals in other cases. Second, even if the Brown-
ing-Ferris decision were upheld by a court of appeals, this would not
render inappropriate the Board’s independent assessment of the joint-
employer issue here and in other cases. Indeed, in the Murphy Oil
litigation, the Board decided that class-action waiver agreements con-
stitute unlawful interference with protected rights in violation of Sec-
tion 7 of the Act; the Board’s position was rejected by the Fifth Circuit;
and the Board continued to find similar violations in dozens of other
cases and to defend the Board’s position in the courts (even in cases
appealed to the Fifth Circuit). See, e.g., Murphy Oil USA, Inc., 361
NLRB 774 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), cert.
granted 137 S. Ct. 809 (2017). Third, for obvious reasons, there is no
doctrine that precludes the Board from deciding cases whenever prior
decisions involving similar issues are pending appeal. Because of the
large number of Board cases that involve the same issues and legal
principles, such a principle would impede the timely adjudication of
cases by the Board, given the frequency with which losing parties seek
review in the courts of appeals. Finally, the Board has the discretion to
direct the General Counsel to request courts of appeals to remand pend-
ing cases to the Board; such requests have been granted; and subse-
quent Board decisions reversing the original Board ruling have been
enforced. See, e.g., Milwaukee Spring Div. of Illinois Coil Spring Co.,
265 NLRB 206 (1982), remanded 718 F.2d 1102 (7th Cir. 1983), re-
versed on reconsideration 268 NLRB 601 (1984), affd. 765 F.2d 175
(D.C. Cir. 1985).
The Board’s resolution of the joint-employer issue in the instant case
is materially different from Miller & Anderson, Inc., 364 NLRB No. 39
(2016), where our dissenting colleagues unnecessarily overruled exist-
ing law to find a petitioned-for bargaining unit appropriate despite
unrebutted evidence that the bargaining unit had ceased to exist more
than 3 years before the Board issued its decision. The Board majority
there refrained from ruling on a motion to dismiss the representation
case as moot and instead elected to decide the legal issue. The Miller
& Anderson majority reinstated the election petition and remanded the
case to the Regional Director to determine whether any employees
existed who could vote in the election—again, despite unrebutted evi-
dence that made it almost certain none did. (No hearing was ever held,
and 14 days after the Board’s decision, the Region granted the Petition-
er’s request to withdraw its election petition.) In this context, Chair-
man (then-Member) Miscimarra dissented, based in part on the absence
of a case or controversy, and he objected that the Board majority “de-
cided an election case . . . when the available evidence makes it virtual-
ly certain that no election will ever take place.” Id., slip op. at 23
(Member Miscimarra, dissenting). By comparison, in the instant case,
the questions presented undeniably have an immediate impact on the
Respondents and other parties. Indeed, our colleagues do not argue that
the instant case need not be resolved; they simply disagree with the
outcome.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 33
recently stated, “[n]either the Act, the Board’s Rules, nor
the Administrative Procedures Act requires the Board to
invite amicus briefing before reconsidering precedent.”
UPMC, 365 NLRB No. 153, slip op. at 10 (2017). Addi-
tionally, the issue we decide today was the subject of
amicus briefing when the Board decided Browning-
Ferris. Further, we respectfully disagree with our dis-
senting colleagues’ contention that the Board maintains a
“longstanding practice of notifying the public and the
parties that a reversal of precedent was under considera-
tion, and soliciting briefs from them.” In the past dec-
ade, the Board has freely overruled or disregarded estab-
lished precedent in numerous cases without supplemental
briefing. See, e.g., E.I. Du Pont de Nemours, 364 NLRB
No. 113 (2016) (overruling 12-year-old precedent in
Courier-Journal, 342 NLRB 1093 (2004), and 52-year-
old precedent in Shell Oil Co., 149 NLRB 283 (1964),
without inviting briefing); Graymont PA, Inc., 364
NLRB No. 37 (2016) (overruling 9-year-old precedent in
Raley’s Supermarkets & Drug Centers, 349 NLRB 26
(2007), without inviting briefing); Loomis Armored
U.S., Inc., 364 NLRB No. 23 (2016) (overruling 32-year-
old precedent in Wells Fargo Corp., 270 NLRB 787
(1984), without inviting briefing); Lincoln Lutheran of
Racine, 362 NLRB No. 188 (2015) (overruling 53-year-
old precedent in Bethlehem Steel, 136 NLRB 1500
(1962), without inviting briefing); Pressroom Cleaners,
361 NLRB 643 (2014) (overruling 8-year-old precedent
in Planned Building Services, 347 NLRB 670 (2006),
without inviting briefing); and Fresh & Easy Neighbor-
hood Market, Inc., 361 NLRB 151 (2014) (overruling
10-year-old precedent in Holling Press, 343 NLRB 301
(2004), without inviting briefing). Obviously, our dis-
senting colleagues have no blanket commitment to “pub-
lic participation” in agency policymaking. Just this past
week, Members Pearce and McFerran dissented from a
request for information that merely asked interested
members of the public whether the Board’s extensive
rewriting of its representation-case procedures should be
retained, modified, or rescinded.96
Fourth, the Board clearly has the authority to resolve
issues based on legal standards that have not been ex-
pressly raised or challenged by the parties. When the
Board decides cases, it performs an appellate function.97
And the Supreme Court has instructed that “when an

96 See 82 FR 58783 (2017) (NLRB Notice and Request for Infor-
mation, Representation-Case Procedures) (dissenting views of Mem-
bers Pearce and McFerran).
97 In typical unfair labor practice cases, the Board engages in appel-
late review of decisions and orders of the Agency’s administrative law
judges, and in typical representation cases, the Board engages in appel-
late review of decisions by Regional Directors.
issue or claim is properly before the court, the court is
not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to
identify and apply the proper construction of governing
law.” Kamen v. Kemper Financial Services, 500 U.S.
90, 99 (1991).98 Likewise, there is no principle of law
that requires the Board to resolve this case by addressing
the judge’s single-employer finding rather than his joint-
employer finding. Clearly, our colleagues would prefer
that the Board only address the single-employer issue
because our resolution of the joint-employer issue re-
quires the Board to pass on Browning-Ferris, which we
now overrule. In any event, the Board has concluded it
is appropriate to resolve the joint-employer issue, and
that makes it unnecessary to reach or pass on the ques-
tion of single-employer status.
In sum, the Board has the responsibility to decide all
matters that are properly before it, based on our “special
function of applying the general provisions of the Act to
the complexities of industrial life.”99 In the present case,
the question of joint-employer liability is directly pre-
sented to us. In addressing that issue, we have the au-
thority and the obligation to apply the law as we believe
it should be, regardless of whether any party has directly
challenged Browning-Ferris. For the reasons explained
above, the Board has concluded that the common law
and numerous policy considerations favor abandoning
the Browning-Ferris joint-employer standard. In its
place, based on the same considerations, we reinstate the
joint-employer standard that existed prior to the Brown-
ing-Ferris decision.
X. CONCLUSION
The Board is not Congress. It can only exercise the
authority Congress has given it. The Browning-Ferris
majority announced a new test of joint-employer status
based on policies and economic interests Congress has
expressly prohibited the Board from considering. That
alone is reason enough to overrule Browning-Ferris. At
least as troubling from an institutional perspective, how-
ever, was the nature of the Browning-Ferris test. That
test created uncertainty where certainty is needed. It
provided no real standard for determining in advance
when entities in a business relationship will be viewed as

98 In Dish Network Corp., 359 NLRB 311, 312 (2012), Member
Pearce expressly endorsed the applicability of the Kemper Financial
Services rationale to the Board’s adjudicatory authority. Although Dish
Network was invalidated by the Supreme Court’s decision in NLRB v.
Noel Canning, 134 S. Ct. 2550 (2014), based on the absence of a quor-
um of validly appointed Board members who decided the case, we
agree with Member Pearce that the description in Kemper Financial
Services appropriately explains the scope of the Board’s authority.
99 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963).
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
independent and when they will be viewed as joint em-
ployers.
Moreover, as noted previously, the uncertainty created
by Browning-Ferris’ vague standard created an unrea-
sonable risk that (i) parties would discover after the fact,
following years of litigation, that they were unlawfully
absent from negotiations in which they were legally re-
quired to participate; and (ii) other parties would discov-
er that they unlawfully injected themselves into collec-
tive bargaining involving another employer and its un-
ion(s), based on a relationship that turned out to be insuf-
ficient to result in joint-employer status. The Browning-
Ferris majority essentially said that the Board would
look at every aspect of a business relationship on a case-
by-case basis and then decide the joint-employer ques-
tion after the fact. As the dissenters in Browning-Ferris
put it, the Board owed a greater duty to the public than to
launch some massive ship of new design into unsettled
waters and tell the nervous passengers only that “we’ll
see how it floats.”
Accordingly, for all the reasons set forth above, we re-
turn today to a standard that has served labor law and
collective bargaining well, a standard that is understand-
able and rooted in the real world. It recognizes joint-
employer status in circumstances that make sense and
would foster stable bargaining relationships. Indeed, in
the Board’s treatment of joint-employer status as turning
on whether joint control is exercised (rather than merely
reserved), whether such control has a “direct and imme-
diate” impact on employment terms (rather than a merely
indirect impact), and whether such control is not merely
“limited and routine,” there have still been many cases
where two or more employers were found to exercise
sufficient control over a common group of employees to
warrant joint bargaining obligations and shared liability
for unfair labor practices.100 Our quarrel with Browning-
Ferris stems not from any disagreement about the gen-
eral concept of joint-employer status but rather from its

100 The Browning-Ferris majority faulted the dissenters for making
“no real effort to address” the issues they raised. We believe the criti-
cism was unfair, but the pre-Browning-Ferris framework we return to
today already supplies the answer. Economic interdependence and
indirect influence work both ways, and unions enjoy great flexibility
when dealing with employers that are interdependent with other enti-
ties. As long as the union respects secondary boycott principles, lever-
age applied to the undisputed employer is likely to affect the employ-
er’s suppliers, vendors, and other parties having closely aligned eco-
nomic interests, which predictably may lead to meaningful discussions
and changes across the various entities. Such discussions are likely to
occur even “without the intervention of the Board enforcing a statutory
requirement to bargain,” and there is an “important difference” between
such discussions being “permitted” as opposed to making them “man-
datory.” First National Maintenance v. NLRB, 452 U.S. at 681 fn. 19,
683.
imposition of a test that we firmly believe cannot be rec-
onciled with the common law agency standard the Board
is compelled to apply, based on a statute the Board is
duty-bound to enforce.
The Supreme Court has cautioned that a Federal agen-
cy must explain itself when departing from an interpreta-
tion of well-established rules that have governed busi-
ness practices for long periods, even when the rules are
of the agency’s own making. In Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156 (2012), the
Court reviewed a new interpretation promulgated by the
Department of Labor, under which pharmaceutical sales
representatives would no longer be considered outside
salesmen exempt from the overtime provisions of the
Fair Labor Standards Act (FLSA). The Court empha-
sized that its usual deference to such an agency action
was not warranted because of the “potentially massive”
economic implications of the new interpretation “for
conduct that occurred well before that interpretation was
announced,”101 and because deference “would seriously
undermine the principle that agencies should provide
regulated parties ‘fair warning of the conduct [a regula-
tion] prohibits or requires.’”102 The Court also noted that
DOL’s “longstanding practice” of exempting “detailers”
went back to the beginning of the FLSA, and that there
were currently 90,000 detailers working for pharmaceuti-
cal companies with the understanding that they were ex-
empt outside sales representatives.103
Because the DOL’s new interpretation would have
been so disruptive to the regulated industry, the Court
could not simply defer to it:
It is one thing to expect regulated parties to conform
their conduct to an agency’s interpretations once the
agency announces them; it is quite another to require
regulated parties to divine the agency’s interpretations
in advance or else be held liable when the agency an-
nounces its interpretations for the first time in an en-
forcement proceeding and demands deference.
Accordingly, whatever the general merits of . . . defer-
ence, it is unwarranted here. We instead accord the De-
partment’s interpretation a measure of deference pro-
portional to the “‘thoroughness evident in its considera-
tion, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors
which give it power to persuade.’” United States v.
Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150

101 Id. at 2167.
102 Id. (quoting Gates & Fox Co. v. Occupational Safety and Health
Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986)).
103 Id. at 2167–2168.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 35
L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124
(1944)).104
What the Browning-Ferris majority did was far broad-
er in scope than DOL’s invalidated interpretive change.
Instead of overturning one discrete, longstanding agency
interpretation that affected a statutory exemption for a
single category of employer, the Board substantially al-
tered its interpretation of joint-employer status across the
entire spectrum of private business relationships subject
to our jurisdiction. Our return to the principles of the TLI
and Laerco is based in part on our grave concern regard-
ing the impact of Browning-Ferris’ reformulation of the
joint-employer standard on a much broader body of law,
affecting multiple doctrines central to the Act that have
been developed and refined through decades of work by
bipartisan Boards, the courts, and Congress. As in Chris-
topher, the Browning-Ferris majority gave insufficient
consideration to the “potentially massive” economic im-
plications of its new joint-employer standard, and it re-
quired innumerable parties to “divine the agency’s inter-
pretations in advance or else be held liable when the
agency announces its interpretations for the first time in
an enforcement proceeding.”
For the reasons stated above, we overrule Browning-
Ferris and restore the joint-employer standard that exist-
ed prior to the Browning-Ferris decision. Thus, a find-
ing of joint-employer status requires proof that the al-
leged joint-employer entities have actually exercised
joint control over essential employment terms (rather
than merely having “reserved” the right to exercise con-
trol), the control must be “direct and immediate” (rather
than indirect), and joint-employer status will not result
from control that is “limited and routine.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Hy-
Brand Industrial Contractors, Ltd., Muscatine, Iowa, and
Brandt Construction Co., Milan, Illinois, a joint employ-
er, their officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for the introductory para-
graph of the recommended Order.
Respondent, a joint employer consisting of Hy-Brand
Industrial Contractors, Ltd. (Hy-Brand) of Muscatine,
Iowa, and Brandt Construction Co. (Brandt) of Milan,
Illinois, its officers, agents, successors, and assigns, shall
2. Substitute the following for paragraph 2(a).

104 Id. at 2168–2169.
“2a. Within 14 days from the date of this Order, offer
Dakota Upshaw, Cole Hinkhouse, Austin Hovendon,
Alezzandro Campbell, David Newcomb, Ron Senteras,
and Nicole Pinnick full reinstatement to their former jobs
or, if such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. December 14, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBERS PEARCE and MCFERRAN, dissenting.
Today, the majority resurrects a restrictive joint-
employer standard under the National Labor Relations
Act, adopting point for point the dissent in BFI Newby
Island Recyclery, 362 NLRB No. 186 (2015). The ma-
jority reflexively reverses precedent even though:
(1) this case should easily be decided without reaching
the joint-employer issue at all, by correctly finding that
the Respondents are a single employer;
(2) the adoption of a new joint-employer standard con-
cededly makes no difference to whether the Respondents
here are, in fact, joint employers;
(3) no party in this case has asked the Board to recon-
sider BFI (and, to the contrary, the parties cite and apply
BFI as the applicable standard);
(4) breaking with established practice, the Board has
failed to give notice that it was considering a change in
the law and has failed to provide interested persons with
an opportunity to file briefs on the issue; and
(5) the United States Court of Appeals for the District
of Columbia Circuit is currently reviewing BFI.
To say that the majority is reaching out—and rushing—to
reverse BFI is an understatement.
Today’s decision represents a failure to engage in the
reasoned decisionmaking required of administrative
agencies by the Administrative Procedure Act. This case
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
is not a proper vehicle for reconsidering the joint-
employer standard to begin with, and the majority’s fail-
ure to permit public participation only worsens matters.
Not surprisingly, a deeply flawed process leads to a
deeply flawed result. The majority starts with a willful
misunderstanding of the joint-employer standard adopted
in BFI and ends by reverting to a standard that, before
today, the Board had never even attempted to justify in
terms of the common-law principles that must guide us.
As we will explain, the resurrected standard not only is
impossible to reconcile with the common law of agency,
it also violates the explicit policy of the National Labor
Relations Act: to “encourag[e] the practice and procedure
of collective bargaining.” 29 U.S.C. §151. Today’s de-
cision is an unfortunate and unwarranted step backward.
I.
There is no genuine occasion here to revisit the
Board’s joint-employer standard.1 The material facts
underscore the simplicity of this case—and the arbitrary
process that has led to today’s decision. Charles Brandt
and his three sons owned two ostensibly separate con-
struction businesses – Brandt, which performed public
works and other construction projects and employed 140
employees; and Hy-Brand, which erected steel ware-
houses and other structures and employed 10 employees.
All four principals had the same ownership interest and
played the same management role in both entities. Vice
President Terence Brandt oversaw all major decisions for
Brandt and Hy-Brand, including firing decisions. The
entities maintained identical workplace rules, shared a
single payroll and benefit administrator, and provided the
same benefits. In addition, the evidence indicates that
certain operations were interrelated; specifically, Brandt
and Hy-Brand employees testified that they had worked
together, shared equipment, and performed construction
services for the other entity.

1 To recall the words of our majority colleague in an earlier case
(misplaced there, but apt here):
[T]he importance of an issue does not warrant the issuance of a deci-
sion in the absence of an actual case or controversy. Moreover . . . the
issues presented here will undoubtedly arise in another case . . . and
the existence of an evidentiary record in such a case would predictably
render any resulting Board decision more concrete and, hopefully,
more understandable.
Miller & Anderson Inc., 364 NLRB No. 39, slip op. at 23 (2016) (Member
Miscimarra, dissenting). The majority incorrectly characterizes Miller &
Anderson as involving unrebutted evidence that the representation issue
presented there was moot. In fact, while one of the employers did move to
dismiss the petition as moot, the petitioner contested that motion and offered
to test the employer’s factual claims at hearing. The Board appropriately
found that the motion to dismiss raised material factual issues warranting a
hearing and remanded the case to the Regional Director to resolve those
issues. 364 NLRB No. 39, slip op. at 14 fn. 40 (2016).
Between July and November 2015, five Hy-Brand em-
ployees and two Brandt employees went on strike to pro-
test unsafe working conditions and substandard wages
and benefits. Terence Brandt personally made the deci-
sion to fire all seven employees in retaliation for their
actions.
On those facts, this should be a simple case. There is
no dispute over the unlawful act that was committed: the
discharge of seven employees who engaged in a protect-
ed work stoppage. Nor is there any real question about
the legal status of the actors here: nominally separate
companies that were commonly owned and managed by
the Brandt family, which exercised centralized control
over labor policy and personnel decisions. As found by
the judge, decades of Board law make clear that, in the
situation described, Brandt and Hy-Brand should be lia-
ble as a single employer.2 The two entities shared: (1)
common ownership; (2) common management; (3) inter-
related operations; and (4) common control of labor rela-
tions. It is particularly significant that the Brandt family
exercised centralized control over labor relations, as
evinced by Terence Brandt’s significant control over
employment matters at both entities and his direct partic-
ipation in the unfair labor practices.3 By any measure,
this has all the hallmarks of a single, integrated enter-
prise, characterized by the “absence of an arm’s-length
relationship among seemingly independent companies.”4
In sum, all the elements of an easy case are here.
Moreover, this is a case that merited quick disposition.
The timely resolution of allegations such as these—
involving the permanent loss of employment—is “most
central to achievement of the Agency’s mission,” and for
good reasons. See NLRB Casehandling Manual Part
One, Sec. 11740.1. The Board has explained that “[t]he
discharge of employees because of union activity is one
of the most flagrant means by which an employer can
hope to dissuade employees . . . because no event can
have more crippling consequences to the exercise of Sec-
tion 7 rights than the loss of work.” Mid-East Consoli-
dation Warehouse, 247 NLRB 552, 560 (1980). Accord-
ingly, such cases are considered to have an “exceptional
impact” on the public and are subject to the most strin-
gent case-processing goals. See NLRB Casehandling

2 See, e.g., Overton Markets, Inc., 142 NLRB 615 (1963); Blumen-
feld Theaters Circuit, 240 NLRB 206 (1979), enfd. mem. 626 F.2d 865
(9th Cir. 1980); Truck & Dock Services, 272 NLRB 592, 592 fn. 2
(1984); Alexander Bistritzky, 323 NLRB 524, 524–525 (1997); Spurli-
no Materials, LLC, 357 NLRB 1510 (2011), enfd. 805 F.3d 1131 (D.C.
Cir. 2015).
3 See Rogan Brothers Sanitation, Inc., 362 NLRB No. 61 (2015),
slip op. at 5–6, enfd. 651 Fed.Appx. 34 (2nd Cir. 2016).
4 Bolivar-Tees, Inc., 349 NLRB 720, 720 (2007), enfd. 551 F.3d 722
(8th Cir. 2008).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 37
Manual (Part One) Unfair Labor Practice Proceedings
Sec. 11740.1. Had the Board simply voted to adopt the
judge’s decision—while disclaiming reliance on his al-
ternative finding of joint-employer status—an Order re-
quiring reinstatement could have issued well before now.
Instead, the newly-constituted majority invents an op-
portunity to overrule the Board’s 2-year-old joint-
employer standard. It is indisputable, however, that this
case is missing the foundational element of a joint-
employer claim—namely separate and independent em-
ployers.
In BFI, the Board reiterated its endorsement of the
Third Circuit’s careful distinguishing of the joint-
employer doctrine from the single-employer doctrine.
362 NLRB No. 186, slip op. at 9–10. The court had ex-
plained many years ago that:
a finding that companies are “joint employers” assumes
in the first instance that companies are “what they ap-
pear to be”- independent legal entities that have merely
“historically chosen to handle jointly . . . important as-
pects of their employer-employee relationship.” . . . .
The basis of the finding is simply that one employer
while contracting in good faith with an otherwise inde-
pendent company, has retained for itself sufficient con-
trol of the terms and conditions of employment of the
employees who are employed by the other employer.
Thus, the “joint employer” concept recognizes that the
business entities involved are in fact separate but that
they share or co-determine those matters governing the
essential terms and conditions of employment.
NLRB v. Browning Ferris Industries of Pennsylvania, Inc.,
691 F.2d 1117, 1122–1123 (1982) (emphasis added, inter-
nal citations omitted).5 For reasons that should be very ob-
vious, applying the joint-employer test to a single, integrated
employer is illogical: it is absurd to ask whether an organi-
zation shares or codetermines essential terms and conditions
of employment with itself. Yet this is exactly what the ma-
jority does here—in a single paragraph of analysis that in-
cludes no reference to joint-employer principles and cites no
case law.
Likewise, the key tenets of BFI that the majority pur-
ports to overrule – namely those relating to the signifi-
cance of reserved, indirect, and routine control (all of
which are discussed in detail below) – have no applica-
tion in this case. There is no allegation or evidence that,
pursuant to a contract, Brandt reserved the right to exer-
cise control over Hy-Brand employees, or vice versa.

5 Oddly, the majority devotes a lengthy footnote (which cites the
same Third Circuit case) to delineating the legal distinction between
single employer and joint employer relationships. It then proceeds to
willfully ignore this distinction.
Nor is there any allegation or evidence that Brandt exer-
cised control over Hy-Brand employees indirectly or
through an intermediary, such as a Hy-Brand supervisor.6
Again, the entire record underscores that the Brandt
family directly controlled both entities as a single em-
ployer.
So, this is a single-employer case, not a joint-employer
case.7 Yet the majority insists that this case must be re-
solved under joint-employer principles.8 This makes
sense, of course, only in light of the majority’s overrid-
ing goal to reverse BFI. Significantly, even the parties

6 Even assuming that the majority is correct in applying joint-
employer precedent (which it is not), there is no allegation that Brandt’s
control over Hy-Brand was anything other than direct and immediate.
Accordingly, this case does not implicate the doctrinal changes effected
by BFI, and a finding that Brandt and Hy-Brand are joint employers
would not require that precedent to be overruled.
In addition to unnecessarily reaching the joint employer doctrine, the
majority then misapplies it under any understanding. The majority
finds Brandt and Hy-Brand to be joint employers of all seven dis-
charged employees, five of whom were employed by Hy-Brand and
two of whom were employed by Brandt. But the entirety of the majori-
ty’s analysis focuses on Brandt’s control over Hy-Brand employees and
includes no evidence indicating why Hy-Brand, the smaller entity,
would be a joint employer of Brandt’s employees. Perhaps unsurpris-
ingly, the majority’s analysis reads like an application of single-
employer precedent, wherein both nominally separate entities would be
the employer of all the discharged employees.
7 Accordingly, we would adopt the judge’s finding that Brandt and
Hy-Brand are liable for the discharges as a single employer, without
needing to pass on the judge’s joint-employer finding.
8 The majority states that “there is no principle of law that requires
the Board to resolve this case by addressing the judge’s single-
employer finding rather than his joint-employer finding.” But there is
certainly a principle requiring that the correct legal analysis be applied
to the facts at hand. It is indisputable that this case presents a single-
employer scenario, and that the joint-employer analysis the majority
purports to apply simply does not fit the facts. The “share or co-
determine” inquiry only makes sense when there are two separate and
independent employers—and not a single employing entity, as in this
case.
The majority also asserts that “our colleagues would prefer that the
Board only address the single-employer issue because our resolution of
the joint-employer issue requires the Board to pass on Browning-Ferris
. . .” In our view, however, any sound and proper analysis of this case
would begin by asking whether Hy-Brand and Brandt constitute a sin-
gle employer. This is because a single-employer finding would essen-
tially render a joint-employer finding to be both unnecessary and non-
sensical. Tellingly, the majority bypasses the single-employer inquiry
completely and without explanation.
Finally, the majority contrasts its decision here with Miller & Ander-
son, supra, in which the Board revisited representation precedent—
improperly, in the majority’s view—where one party claimed that the
petitioned-for unit no longer existed and the controversy was thus ren-
dered moot. Even accepting the majority’s characterization of that
decision (which, as previously explained, we do not), the majority here
does exactly what it accuses the Miller & Anderson Board of doing.
Although a live controversy surely exists in this case, it is not one that
implicates the joint-employer precedent that the majority overrules.
Accordingly, and contrary to the majority, we disagree with its resolu-
tion of this case under an inapplicable theory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
and the judge recognized that this is really a single-
employer case. 9
II.
To make matters worse, the majority’s procedural
course disregards basic principles of reasoned deci-
sionmaking as well as longstanding Agency norms in
favor of public participation. As the Supreme Court has
made clear, the Board’s adjudication in cases like this
one is subject to the requirement of the Administrative
Procedure Act that an agency engage in “reasoned deci-
sionmaking.” Allentown Mack Sales and Service, Inc. v.
NLRB, 522 U.S. 359, 374 (1998). “Not only must an
agency’s decreed result be within the scope of its lawful
authority, but the process by which it reaches that result
must be logical and rational.” Id. The majority’s deci-
sion here fails on both counts.
First, an agency “must examine the relevant data and
articulate a satisfactory explanation for its action includ-
ing a ‘rational connection between the facts found and
the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983), quoting Burlington Truck Lines v. United States,
371 U.S. 156 (1962). But the majority’s decision bears
little relationship to the facts, which, as explained, do not
fairly present a genuine joint-employer issue.
Equally troubling is the majority’s disregard for estab-
lished Agency norms favoring public participation in the
decision-making process. As in other recent decisions,10
the majority once again arbitrarily dispenses with the
Board’s longstanding practice of notifying the public and
the parties that a reversal of precedent was under consid-
eration, and soliciting briefs from them.11 (None of the

9 The record makes clear that, throughout the course of litigation, the
General Counsel’s primary theory of the case was single employer.
Tellingly, moreover, the judge’s legal analysis focused almost exclu-
sively on the single-employer issue, with only a perfunctory joint-
employer paragraph that largely restated his single-employer rationale.
Likewise, even the Respondent’s 31-page exceptions brief devotes only
a single, citation-free paragraph to contesting the judge’s joint-
employer finding.
10 The Boeing Company, 365 NLRB No. 154 (2017) (Member
McFerran dissenting); UPMC, 365 NLRB No. 153 (2017) (Member
McFerran dissenting).
11 See, e.g., Temple University Hospital, Inc., Case No. 04–RC–
162716, Order Granting Review in Part and Invitation to File Briefs
(filed Dec. 29, 2016), available at https://apps.nlrb.gov/link/
document.aspx/09031d45822fb922 (whether the Board should exercise
its discretion to decline jurisdiction over the employer); Postal Service,
364 NLRB No. 116 (2016) (whether the Board may continue to permit
administrative law judges to issue a “consent order,” incorporating the
terms proposed by a respondent to settle an unfair labor practice case,
to which no other party has agreed, over the objection of the General
Counsel); King Soopers, Inc., 364 NLRB No. 93 (2016) (whether the
Board should revise its treatment of search-for-work and interim em-
ployment expenses as part of the make-whole remedy for unlawfully

discharged employees), enfd. in relevant part 859 F.3d 23 (D.C. Cir.
2017); Columbia University, 364 NLRB No. 90 (2016) (whether the
Board should modify or overrule its decision in Brown University, 342
NLRB 483 (2004), in which it held that graduate assistants who per-
form services at a university in connection with their studies are not
statutory employees under the National Labor Relations Act); Miller &
Anderson, Inc., 364 NLRB No. 39 (2016) (whether the Board should
adhere to its decision in Oakwood Care Center, 343 NLRB 659 (2004),
which disallowed inclusion of solely employed employees and jointly
employed employees in the same unit absent consent of the employers,
and if not, whether the Board should return to the holding of M.B.
Sturgis, Inc., 331 NLRB 1298 (2000), which permits the inclusion of
both solely and jointly employed employees in the same unit without
the consent of the employers); Service Workers Local 1192 (Buckeye
Florida Corp.), 362 NLRB No. 187 (2015) (whether the Board should
reconsider its rule that, in the absence of a valid union-security clause, a
union may not charge nonmembers a fee for processing grievances);
BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (whether the
Board should adhere to its existing joint employer standard or adopt a
new standard); Northwestern University, 362 NLRB No. 167 (2015)
(whether the Board should find grant-in-aid scholarship football players
are employees under the NLRA); Purple Communications, Inc., 361
NLRB 1050 (2014) (whether the Board should adopt a rule that em-
ployees who are permitted to use their employer’s email for work pur-
poses have the right to use it for Section 7 activity, subject only to the
need to maintain production and discipline); Pacific Lutheran Universi-
ty, 361 NLRB 1404 (2014) (whether a religiously-affiliated university
is subject to the Board’s jurisdiction, and whether certain university
faculty members seeking to be represented by a union are employees
covered by the National Labor Relations Act or excluded managerial
employees); Latino Express, Inc., 361 NLRB 1171 (2014) (whether, in
awarding backpay, the Board should routinely require the respondent
to: (1) submit documentation to the Social Security Administration so
that backpay is allocated to the appropriate calendar quarters, and (2)
pay for any excess Federal and state income taxes owed as a result of
receiving a lump-sum payment); Babcock & Wilcox Construction Co.,
361 NLRB 1127 (2014) (whether the Board should change the standard
for determining when the Board should defer to an arbitration award),
rev. denied sub nom Beneli v. NLRB, 873 F.3d 1094 (9th Cir. 2017);
New York University, Case No. 02–RC–023481, Notice and Invitation
to File Briefs (filed June 22, 2012), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3252/ntc_02-rc-23481_nyu_and_polytechnic_notice___invitation.pdf
(whether graduate student assistants who perform services at a universi-
ty in connection with their studies are or are not statutory employees
within the meaning of Section 2(3) of the National Labor Relations
Act); Point Park University, Case No. 06–RC–012276, Notice and
Invitation to File Briefs (filed May 22, 2012), available at
https://apps.nlrb.gov/link/document.aspx/09031d4580a0ee7d (whether
university faculty members seeking to be represented by a union are
employees covered by the National Labor Relations Act or excluded
managers); D.R. Horton, Inc., 357 NLRB 2277 (2012) (whether manda-
tory arbitration agreements that preclude employees from filing joint,
class, or collective claims addressing their wages, hours or other work-
ing conditions against the employer in any forum, arbitral or judicial,
violate the NLRA), enf. granted in part and denied in part, 737 F.3d
344 (5th Cir. 2013); Hawaii Tribune-Herald, Case No. 37–CA–007043,
Notice and Invitation to File Briefs (filed March 2, 2011), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/stephensmediainvite.pdf (whether the Respondent had a duty to
provide the Union with a statement provided to it by an employee or
any other statements that it obtained in the course of its investigation of
another employee’s alleged misconduct); Chicago Mathematics and
Science Academy Charter School, Inc., Case No. 13–RM–001768,
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 39
cases cited by the majority diminish the fact that inviting
briefs has become an established Board norm—and the
majority tellingly cites no recent case in which the Board
refused to seek briefing over objections from a mem-
ber.12) The Board followed this very process before de-

Notice and Invitation to File Briefs (filed January 10, 2011), available
at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/chicago_mathematics_brief.pdf (whether an Illinois charter
school should fall under the jurisdiction of the NLRB or the Illinois
Educational Labor Relations Board); Specialty Healthcare & Rehabili-
tation Center of Mobile, 357 NLRB 934 (2011) (what constitutes an
appropriate bargaining unit), enfd. sub nom Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013); Roundy’s Inc., Case
No. 30–CA–017185, Notice and Invitation to File Briefs (filed Novem-
ber 12, 2010), available at https://www.nlrb.gov/sites/default/
files/attachments/basic-page/node-3253/roundys_notice_and_
invitation.pdf (what standard the Board should apply to define discrim-
ination in cases alleging unlawful employer discrimination in nonem-
ployee access); UGL-UNICCO Service Co., 357 NLRB 801 (2011)
(what duties a successor employer has toward an incumbent union);
Lamons Gasket Co., 357 NLRB 739 (2011) (whether, and how long,
employees and other unions should have to file for an election follow-
ing an employer’s voluntary recognition of a union); J. Picini Flooring,
356 NLRB 11 (2010) (whether Board-ordered remedial notices should
be posted electronically and, if so, what legal standard should apply and
at what stage of the proceedings any necessary factual showing should
be required); Kentucky River Medical Center, 356 NLRB 6 (2010)
(whether the Board should routinely order compound interest on back-
pay and other monetary awards in backpay cases and if so, what the
standard period for compounding should be); Long Island Head Start
Child Development Services, 354 NLRB No. 82 (2009) (two-member
Board decision) (whether the Board should find contract termination
based on bargaining even in the absence of any contractually-required
notice); Register Guard, 351 NLRB 1110 (2007) (whether employees
have a Section 7 right to use their employer’s email system to com-
municate with one another, what standard should govern that determi-
nation, and whether an employer violates the Act if it permits other
nonwork-related emails but prohibits emails on Section 7 matters),
enfd. in part and remanded in part sub nom. Guard Publishing v. NLRB,
571 F.3d 53 (D.C. Cir. 2009); Can-Am Plumbing, Inc., 350 NLRB 947
(2007) (whether the job targeting program at issue violated the Davis-
Bacon Act), enfd. 340 Fed.Appx. 354 (9th Cir. 2009); Dana Corp., 351
NLRB 434 (2007) (whether the Board should modify its recognition
bar doctrine as articulated in Keller Plastics Eastern, Inc., 157 NLRB
583 (1966), Smith’s Food & Drug Centers., 320 NLRB 844 (1996), and
Seattle Mariners, 335 NLRB 563 (2001)); Alyeska Pipeline Service
Co., 348 NLRB 779 (2006) (whether a systemwide presumption is
warranted in the circumstances of the instant case); Oakwood
Healthcare, Inc., 348 NLRB 686 (2006) (seeking comment relating to
(1) the meaning of “assign,” “responsibly to direct,” and “independent
judgment,” as those terms are used in Section 2(11) of the Act; and (2)
an appropriate test for determining unit placement of employees who
take turns or “rotate” as supervisors), see also Croft Metals, Inc., 348
NLRB 717 (2006) and Golden Crest Heath Center, 348 NLRB 727
(2006); Firstline Transportation Security, 347 NLRB 447 (2006)
(whether the Board should assert jurisdiction over the employer, a
private company contracting with the Transportation Security Admin-
istration).
12 The majority asserts that there are “numerous” cases where the
Board “has freely overruled or disregarded established precedent . . .
without supplemental briefing.” But the six decisions the majority cites
are easily distinguishable from this one.
ciding BFI—providing notice in May 2014 that the joint-
employer standard was to be revisited, disseminating a
set of questions, soliciting briefs, and reviewing those
submissions as part of the decision-making process. The
BFI decision, in turn, benefited from the insights of key
stakeholders, including employer interest groups, labor
unions, workplace safety advocates, academics, Federal
agencies, and our own General Counsel.13 Secretary of
Labor Alexander Acosta, speaking of his own agency’s
interpretation of the joint-employer standard under the
Fair Labor Standards Act, recently observed:
[A]s a matter of public policy[,] public debate, discus-
sion, and comment are good. Perhaps the joint-
employer doctrine is good policy; perhaps not. It is
certainly not the type of policy change we want to
make without public input. . . . Congress entrusts poli-
cy decisions to an agency’s discretion on the condition

First, in all six cases—E.I. Du Pont de Nemours, 364 NLRB No. 113
(2016); Graymont PA, Inc., 364 NLRB No. 37 (2016); Loomis Armored
U.S., Inc., 364 NLRB No. 23 (2016); Lincoln Lutheran of Racine, 362
NLRB No. 188 (2015); Pressroom Cleaners, 361 NLRB 643 (2014);
and Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151
(2014)—a party explicitly and publicly asked the Board to overrule
precedent. (The General Counsel asked the Board to revisit or overrule
precedent in Fresh & Easy, Lincoln Lutheran, Loomis, Graymont, and
Du Pont; in Pressroom Cleaners, the Charging Party asked the Board
to overrule precedent.)
Additionally, in Loomis and Lincoln Lutheran, amicus briefs were
actually filed requesting, respectively, that the Board reverse or adhere
to extant Board precedent.
Further, Du Pont and Lincoln Lutheran were the culmination of
long-running discussions of the precedent they ultimately overruled. In
Du Pont, the Board accepted a remand from the United States Court of
Appeals for the District of Columbia Circuit for the express purpose of
deciding between two conflicting branches of precedent. See E.I. Du
Pont de Nemours and Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012).
Lincoln Lutheran, in turn, was the culmination of a 15-year dialogue
with the United States Court of Appeals for the Ninth Circuit about
Bethlehem Steel. See WKYC-TV, Inc., 359 NLRB 286, 286 (2012)
(discussing history).
Finally, as already pointed out, in none of these cases did the Board
refuse to request briefing over the objection of one or more Board
members.
These six cases stand in sharp relief from the instant case where no
party has asked us to revisit or overrule precedent and there has been no
long-running dialogue with a Federal court of appeals; indeed, neither
the parties nor the public could have anticipated that the Board was
planning to overrule precedent in this case.
13 Remarkably, the majority points to the fact that the BFI Board in-
vited briefing as a reason not to do so here. But our assumption should
be that public participation is desirable, unless there are legitimate and
compelling reasons to think otherwise. No party to this case, and no
member of the public, has addressed the merits of the Board’s decision
in BFI and its specific rationale, as opposed to its mere application to
the facts presented in this case. Nor has there been an opportunity for
the public to address the impact of the application of the BFI standard
to the decision of specific cases and controversies. The better course
here would be to give interested persons (including those who did not
file briefs in BFI) the opportunity to address the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
that the agency receive the public’s input on substan-
tive policy.
Alexander Acosta, Remarks to the Federalist Society (Sept.
15, 2017), as reported in Bureau of National Affairs, Daily
Labor Report (Oct. 23, 2017).
The majority’s unwillingness to let the parties and the
public participate here is particularly curious given its
characterization of the Board’s joint-employer jurispru-
dence as having “dramatic implications for labor rela-
tions policy and . . . the economy.” Surely, hearing from
the parties and the public would inform the majority of
the precise nature of those “dramatic implications” and
what role, if any, the BFI standard has played in relation
to those implications. For their part, the parties and the
public surely will share our surprise in finding that this
case—in which single-employer status was, at all times,
the primary issue—has been misappropriated as a vehicle
to overrule joint-employer precedent.
They may equally wonder why they were denied an
opportunity for briefing in light of the questions that the
majority leaves unanswered: What is the justification for
overruling BFI after just 2 years, and why in this case?
Even a cursory glance at today’s decision reveals that the
majority’s policy basis for overruling BFI is entirely
speculative: pages upon pages bemoaning the changes
supposedly wrought by BFI and their potential cata-
strophic effects, but no real-world examples or even re-
motely plausible hypotheticals. It is reasonable to infer
that our colleagues do not want to engage the public for
fear of what they might learn—namely, that none of the
predicted effects of BFI have actually come to pass.
Of course, the reality is that, after a mere 2 years, any
accounting of BFI’s effects would be premature; indeed,
before it was overruled today, BFI has been applied by
the Board in only one other Board decision.14 The com-
plete absence of relevant experience under BFI under-
scores the essentially reflexive nature of today’s exercise.
That reflex is only confirmed by the majority’s decision
to cast aside the customary benchmarks of reasoned
Board review: the assessment of case law, the evaluation
of evidence, even drafting an original opinion. And the
majority is even unwilling to wait for a decision from the
United States Court of Appeals for the District of Co-
lumbia Circuit, before which BFI was argued earlier this
year.15 Absent explanation, we are left to speculate why

14 Retro Environmental, Inc./Green Jobworks, LLC, 364 NLRB No.
70 (2016).
15 The majority rejects any suggestion that the Board not reach out to
decide the joint-employer issue in this case while the U.S. Court of
Appeals for the District of Columbia Circuit considers BFI on review.
But a commitment to reasoned administrative decisionmaking counsels
waiting for the court’s decision (whatever its resolution) and the guid-
today’s decision was carried out with such unfortunate
urgency.
III.
The process by which the majority has reached its de-
cision is indefensible—and, as we explain now, the result
of that process is no better. The majority errs in failing
to adhere to the joint-employer standard adopted in BFI.
That standard, as we will explain, has a required founda-
tion in the common law of agency that the joint-
employer standard resurrected today demonstrably lacks.
And unlike the majority’s test, the BFI standard actually
serves the policies of the National Labor Relations Act.
First, we will review what BFI actually was—a meas-
ured, common-law based restoration of earlier Board
precedent. Second, we will demonstrate why the BFI
approach represented the best reading of the common
law, and why the majority’s approach cannot be recon-
ciled with agency principles. Finally, we will explain
why the majority’s depiction of BFI’s practical conse-
quences is wildly off base and why the majority’s ap-
proach is contrary to the goals of Federal labor law.
A.
In BFI, decided in 2015, the Board sought to address
the difficult question of how best to “encourag[e] the
practice and procedure of collective bargaining” (in the
Act’s words) when otherwise bargainable terms and con-
ditions of employment are under the control of more than
one statutory employer. As a starting point, the BFI
Board described the specific legal and policy shortcom-
ings in the Board’s existing jurisprudence. First, the BFI
Board noted that the Board’s joint-employer standard
had become increasingly restrictive over the past 30
years—a change in the law that had not been explained
or squared with earlier, more expansive precedent.16 (In
fact, before BFI, the Board’s joint-employer doctrine had
never been clearly or comprehensively explained at all.)
Specifically, beginning in the mid-1980’s, the Board had
implicitly repudiated its traditional reliance on a putative
employer’s reserved control and indirect control as indi-
cia of joint-employer status; it instead focused exclusive-

ance it would represent. If the court holds that the standard adopted in
BFI is permissible under the National Labor Relations Act, then the
Board would face a choice between adhering to a judicially-approved,
permissible standard (i.e., BFI) and adopting an alternative standard
(whether the test endorsed by the majority today or some other stand-
ard). That the majority chooses not to await the court—and even raises
the possibility of pretermitting the court’s decision by seeking a remand
of BFI—is troubling. As with the refusal to issue a notice and invita-
tion to file briefs, proceeding without the benefit of the District of Co-
lumbia Circuit’s decision suggests a Board uninterested in considering
alternative views of the law – even those of a reviewing court.
16 362 NLRB No. 186, slip op. at 8–11.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 41
ly on actual control and required the exercise of that con-
trol to be direct, immediate, and not “limited and rou-
tine.”17 See, e.g. TLI, Inc., 271 NLRB 798 (1984), enfd.
mem. 772 F.2d 894 (3d. Cir. 1985), and Laerco Trans-
portation, 269 NLRB 324 (1984). Second, the BFI
Board observed that, over the same period, the diversity
of workplace arrangements had expanded significantly,
particularly those involving staffing and subcontracting
arrangements, or contingent employment.18 The imme-
diate impetus for BFI was thus twofold: putting the
Board’s joint-employer jurisprudence on solid legal foot-
ing, while fulfilling the Board’s primary responsibility of
“applying the general provisions of the Act to the com-
plexities of industrial life.”19
The Board’s holding in BFI comprised several key
components. First, the Board returned to its traditional
joint-employer test, as endorsed by the Third Circuit in
NLRB v. Browning-Ferris:
The Board may find that two or more entities are joint
employers of a single work force if they are both em-
ployers within the meaning of the common law, and if
they share or codetermine those matters governing the
essential terms and conditions of employment.20
“Central to both of these inquiries,” the BFI Board ob-
served, “is the existence, extent, and object of the putative
joint employer’s control.”21 Second, the Board reaffirmed
that its joint-employer standard was informed by the com-
mon-law concept of control, as required by the Act and the
Supreme Court’s interpretation of the statute.22 Finally, the
Board held that it would no longer require that a joint em-
ployer not only possess the authority to control employees’
terms and conditions of employment, but must also exercise
that authority, and do so directly, immediately, and not in a
“limited and routine” manner.23 Accordingly, the Board
held that the right to control, in the common-law sense, was
probative of joint-employer status, as was the exercise of
control, whether direct or indirect.24
Properly understood then, BFI was essentially a mod-
est and limited holding, with clear constraints built into
the majority’s formulation of the joint-employer stand-
ard. With respect to those constraints, the Board first

17 Id., slip op. at 10–11.
18 Id., slip op. at 11.
19 Ford Motor Co. v. NLRB, 441 U.S. 488, 496 (1979), quoting
NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963).
20 362 NLRB No. 186, slip op. at 15.
21 Id., slip op. at 2.
22 Id., slip op. at 15.
23 Id., slip op. at 15–16. To this end, the Board overruled previous
Board decisions to the extent that they were inconsistent with this prin-
ciple.
24 Id.
explained that the existence of a common-law employ-
ment relationship was necessary, but not sufficient, to
find joint-employer status.25 Accordingly, even where
the common law permitted the Board to find joint em-
ployer status in a particular case, the Board would still
determine whether it would serve the purposes of the
National Labor Relations Act to do so, taking into ac-
count the policies of the statute.26 For instance, the
Board explained that, in a particular case, a putative joint
employer’s control might extend only to terms and con-
ditions of employment too limited in scope or signifi-
cance to permit meaningful collective bargaining.27 Sec-
ond, the Board made clear that, as a rule, a joint employ-
er would be required to bargain only with respect to
those terms and conditions which it possessed the author-
ity to control.28 Finally, the Board emphasized that joint-
employment inquiries would take into account “all of the
incidents” of the parties’ relationship, in accordance with
Supreme Court precedent.29
The Board’s decision in BFI belies the current majori-
ty’s repeated and false assertion that BFI created a li-
cense to find joint-employer status based on only the
slightest, most tangential evidence of control.30 That
assertion, of course, echoes much of the BFI dissent,
which focused on the allegedly far-reaching, novel, and
destabilizing nature of the decision. But, again, the
standard announced in BFI was hardly a radical or un-
precedented departure. In fact, it was not even new: it
was a common-law based restoration of the Board’s tra-
ditional standard that, with court approval, had been ap-
plied for decades. Indeed, a leading scholar of labor law
recognized the decision for what it was: “nothing more
than a narrowly crafted opinion that reinstates a prior
definition of the joint employment relationship for pur-
poses of collective bargaining under the regulatory um-
brella of the National Labor Relations Act (NLRA).”31

25 Id., slip op. at 12.
26 Id.
27 Id., slip op. at 16.
28 Id.
29 Id., citing NLRB v. United Insurance Co. of America, 390 U.S.
254, 258 (1968).
30 Significantly, the BFI Board’s joint-employer holding was based
on a full assessment of the facts that revealed multiple examples of
reserved, direct, and indirect control over employees.
31 H.R. 3459, “Protecting Local Business Opportunity Act”: Hear-
ing Before the Subcomm. on Health, Employment, Labor, and Pensions
of the H. Comm. on Education and the Workforce, 114th Cong. 43- 44
(2015) (testimony of Michael C. Harper, Professor of Law and Barreca
Labor Relations Scholar, Boston University School of Law), available
at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode
=CHRG (explaining that BFI was a “narrow and limited decision be-
cause it is tethered to judicial and Board precedents that existed for
several decades prior to the mid-1980s cases”). See also Howard Yale
Lederman, The National Labor Relations Board’s Redefined Joint
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
B.
The BFI Board took care to ensure and explain that the
standard it was reestablishing was well grounded in set-
tled common-law agency principles. By contrast, the
current majority’s standard—the pre-BFI standard es-
poused in TLI and Laerco, but never before explained
with reference to the common law—plainly violates
those principles.
To be sure, all Board members seem to agree here that
the Board’s joint-employer standard must be consistent
with the general common-law agency principles that ap-
ply to employment-status issues under the National La-
bor Relations Act.32 But today, the majority resurrects
the pre-BFI standard, echoing the BFI dissenters’ claims
that BFI represented “a distortion of common law” that
was “contrary to the Act” while, in contrast, the old
standard “is fully consistent with the common law agen-
cy principles that the Board must apply.” [Majority op.
at 7.] As the Board explained in BFI, and we elaborate
below, the majority’s assertions about the BFI standard
are demonstrably wrong. Compounding its error, the
majority reinstates three control-related restrictions that
demonstrably are not mandated by the common law—
just the opposite. The Supreme Court has observed that
the “Board’s departure from the common law of agency
with respect to particular questions and in a particular
statutory context, [may] render[] its interpretation [of the
National Labor Relations Act] unreasonable.”33 This is
such a case.
There should be no dispute about what common-law
agency principles are or where to look for them. In es-
tablishing a Federal rule of agency under those Federal
statutes whose terms are interpreted under the common
law, the Supreme Court relies on the “general common
law of agency, rather than on the law of any particular
State.”34 The Court has explained that “[i]n determining
whether a hired party is an employee under the general

Employer Standard is Justified and Necessary, 96-May Mich. B. J. 30
(2017).
32 NLRB v. United Insurance Co. of America, 390 U.S. at 256. In
United Insurance, the Court addressed the standard for “differentiating
‘employee’ from ‘independent contractor’ as those terms are used in the
[National Labor Relations] Act,” concluding that Congress intended “to
have the Board and the courts apply general agency principles” and the
“common law agency test.” Id.
33 NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 94 (1995),
citing United Insurance, supra, 390 U.S. at 256.
34 Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740
(1989) (interpreting phrase “work prepared by an employee within the
scope of his employment” under Copyright Act of 1976). See also
Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 322–324
(1992) (reaffirming approach of Community for Creative Non-Violence
in construing meaning of “employee” under Employee Retirement
Income Security Act).
common law of agency,” the Court has “traditionally
looked for guidance to the Restatement of Agency.”35
The BFI Board looked to the Restatement as well—and
found no support for the restrictions imposed by the pre-
BFI joint-employer standard: that an employment rela-
tionship requires (1) that the employer’s control actually
be exercised; (2) that the control be “direct and immedi-
ate;” and (3) that the control is not “limited and rou-
tine.”36
Instead of carefully examining controlling principles
and prior precedent (as BFI did) and formulating a joint-
employer standard based on the common law of agency,
today’s majority recycles tangentially relevant authorities
and arguments from the BFI dissent, as if this suffices to
justify the return to a standard that the Board had never
even attempted to explain adequately. The majority’s
approach—invoking the common law persistently, while
baselessly insisting that BFI was not faithful to it—is
understandable (if unforgivable), because a good-faith
examination of agency principles would lead to a result
that the majority cannot accept: that its three control-
related restrictions cannot withstand careful scrutiny.
1. Right to control
The Board’s decision in BFI was firmly and explicitly
grounded in common-law agency principles, in contrast
to the restrictive joint-employer standard that BFI re-
placed. To begin, consider the issue of the putative em-
ployer’s right to control the work. The BFI Board, quot-
ing Sections (2) and 220(1) of the Restatement (Second)
of Agency (1958), explained that “[u]nder common-law
principles, the right to control is probative of an em-
ployment relationship – whether or not that right is exer-
cised” and observed, correctly, that the Board’s “joint-
employer decisions requiring the exercise of control im-
permissibly ignore this principle.”37
The majority, conversely, endorses those old decisions
under which—in the majority’s words (emphasis in orig-
inal)—“joint-employer status turned on whether two en-
tities exercised joint control over essential employment
terms, and evidence that an entity had ‘reserved’ the right
to exercise such control would not result in joint-
employer status.” [Majority op. at 2 fn. 3.] These deci-
sions, and the majority’s endorsement of them, cannot be
reconciled with common law agency principles.
Start with the Restatement (Second) of Agency, which
the Supreme Court repeatedly has used for a guide. It is
beyond dispute that the Restatement recognizes that the

35 Reid, 490 U.S. at 752 fn. 31 (collecting cases). The Court there
cited Sec. 220(2) of the Restatement (Second) of Agency (1958). See
also Darden, 503 U.S. at 324 (citing same Restatement provision).
36 362 NLRB No. 186, slip op. at 13–15.
37 362 NLRB No. 186, slip op. at 13 (emphasis added).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 43
right to control, and not merely the exercise of control, is
probative of an employment relationship. Section 220(1)
defines a “servant” as a “person employed to perform
services . . . who with respect to the physical conduct in
the performance of the services is subject to the other’s
control or right to control.” The key phrase, of course, is
“subject to the other’s . . . right to control.” If the actual
exercise of control were essential, the Restatement would
be phrased quite differently. Section 220(2), in turn,
identifies as a relevant factor in determining the exist-
ence of an employment relationship “the extent of con-
trol which, by the agreement, the master may exercise
over the details of the work.” Again, the Restatement
here refers plainly to reserved authority: the right to con-
trol as defined by any agreement covering the relevant
work.
In Reid, supra, the Supreme Court drew on the Re-
statement and observed that “[i]n determining whether a
hired party is an employee under the general common
law of agency, we consider the hiring party’s right to
control the manner and means by which the product is
accomplished.”38 In Darden, the Court reiterated its
statement in Reid.39 Remarkably, even while insisting
that the right to control is not probative, the majority
cites authority to the contrary, including the Restatement,
a modern Supreme Court decision,40 and an old decision
from the Court observing that the “relation of master and
servant exists whenever the employer retains the right to
direct the manner in which the business shall be done.”41
Well before the National Labor Relations Act was
amended by the Taft-Hartley Act in 1947 to incorporate
common-law agency principles, it was black-letter law
that “[i]n every case which turns upon the nature of the
relationship between the employer and the person em-
ployed, the essential question to be determined is not
whether the former actually exercised control over the
details of the work, but whether he had a right to exercise
that control.”42 Cases supporting that proposition are far
too numerous to cite, but a sample from the Federal
courts of appeals, decided in the 1940s, is illustrative.43

38 490 U.S. at 751 (emphasis added).
39 503 U.S. at 323.
40 Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S.
440 (2003). The issue in Wells was whether a shareholder-director of a
professional corporation was an employee under the Americans with
Disabilities Act. The Court, citing Reid and Darden, looked to the
common law and to the Restatement as reflecting the controlling stand-
ard. Id. at 444–448.
41 Singer Mfg. Co. v. Rahn, 132 U.S. 518, 523 (1889) (emphasis
added).
42 General Discussion of the Nature of the Relationship of Employer
and Independent Contractor, 19 A.L.R. 226 at §7 & fn. 1 (1922).
43 See, e.g., Grace v. Magruder, 148 F.2d 679, 681 (D.C. Cir. 1945)
(in distinguishing independent contractors from employees, “it is the
Not surprisingly, then, the Board’s first cases to address
the common-law distinction between employees and in-
dependent contractors after the Taft-Hartley amendments
also focused on the putative employer’s right to control,
not the exercise of that right.44 Against this backdrop,
the Board clearly acted well within the mainstream of the
controlling common law when it subsequently gave de-
terminative weight to reserved control in joint-employer
cases like Jewel Tea Co.45 and Value Village.46 The

right to control, not control or supervision itself, which is most im-
portant”), cert. denied, 326 U.S. 720 (1945); NLRB v. Nu-Car Carriers,
189 F.2d 756, 757, 759 (3d Cir. 1951) (emphasis added) (applying the
“conventional, common law test of the right to control” “[t]he test for
determining whether the employer-employee relationship exists is right
to control, not the actual exercise of control. However, the evidence as
to what the parties actually did in this case merely strengthens the con-
clusion”), enfg. Nu-Car Carriers, 88 NLRB 75 (1950), cert. denied,
342 U.S. 919 (1952); Birmingham v. Bartels, 157 F.2d 295, 300 (8th
Cir. 1946) (citation and internal quotation marks omitted) (“It is not
necessary that the employer actually shall direct the manner in which
the services are performed, but it is sufficient if he has the right to do
so.”), revd. on other grounds, 332 U.S. 126 (1947); Cimorelli v. New
York Cent. R. Co., 148 F.2d 575, 578 (6th Cir. 1945) (“The fact of
actual interference or exercise of control by the employer is not materi-
al. If the existence of the right or authority to interfere or control ap-
pears, the contractor cannot be independent.”); Williams v. U.S., 126
F.2d 129, 132 (7th Cir. 1942) (“The test usually employed for deter-
mining the distinction between an independent contractor and an em-
ployee is found in the nature and the amount of control reserved by the
person for whom the work is done . . . . it is the right and not the exer-
cise of control which is the determining element.”), cert. denied, 317
U.S. 655 (1942); Jones v. Goodson, 121 F.2d 176, 179 (10th Cir. 1941)
(“[I]t is not necessary that the employer actually direct or control the
manner in which the services are performed; it is sufficient if he has the
right to do so.”).
44 See, e.g., Vaughn Bros., 94 NLRB 382, 383 (1951) (“Under this
[common-law] test an employment relationship exists where the person
for whom the services are performed reserves the right, even though not
exercised, to control the manner and means by which the result is ac-
complished.”); Alaska Salmon Industry, Inc. (Seattle Wash), 81 NLRB
1335, 1338 (1949) (“[A]n employee relationship . . . is found to exist
where the person for whom the services are performed reserves the
right (even if not exercised) to control the manner and means by which
the result is accomplished.”); San Marcos Telephone Co., 81 NLRB
314, 317 (1949) (“Under [common-law] doctrine, an employee rela-
tionship, rather than that of an independent contractor, exists where the
person for whom the services are performed reserves the right (even if
not exercised) to control the manner and means by which the result is
accomplished.”); Steinberg and Co., 78 NLRB 211, 220–221, 223
(1948) (“Under [common-law] doctrine it has been generally recog-
nized that an employer-employee relationship exists where the person
for whom the services are performed reserves the right to control the
manner and means by which the result is accomplished.”), enf. denied
182 F.2d 850 (5th Cir. 1950).
45 162 NLRB 508, 510 (1966) (finding that licensor was joint em-
ployer, based on license agreements, and observing that licensor’s
failure to exercise control was “not material, for an operative legal
predicate for establishing a joint-employer relationship is a reserved
right in the licensor to exercise such control”).
46 161 NLRB 603, 607 (1966) (“Since the power to control is present
by virtue of the operating agreement, whether or not exercised, we find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
Board’s later, more restrictive analysis in joint-employer
cases did not cite, and could not have cited, any parallel
narrowing of common-law doctrine by the courts over
the same period. To the contrary, state and Federal
courts applying the common-law test in determining the
existence of an employment relationship continue to give
determinative weight to reserved control.47
Before today, the Board had never held—including in
the decisions resurrected by the majority—that reliance
on a putative joint employer’s reserved right of control
was improper because it was inconsistent with common-
law agency principles. Indeed, the majority-endorsed
decisions did not even purport to apply common-law
doctrine. Neither in TLI or Laerco, nor in their progeny,
did the Board ever explain the control-related restrictions
it imposed on the joint-employer standard as deriving
from, much less required by, the common law. The ma-
jority here simply chooses to pretend that agency doc-
trine has been something other than what it ever was. It
fails to cite a single decision applying common-law
agency principles that holds that a reserved right of con-
trol is not probative of the existence of an employment
relationship. Any such decision, moreover, would be
contrary to the Restatement (which guides the Supreme
Court, as shown) and to the great weight of precedent.
With respect to the issue of reserved control, then, it is
today’s decision—and not BFI—that violates common-
law agency principles.
2. Indirect control
The BFI Board observed that in many workplace ar-
rangements involving more than one employing entity,
“employees’ working conditions are a byproduct of two

it unnecessary to consider the actual practice of the parties regarding
these matters as evidenced by the record”).
47 Again, the cases are too numerous to cite. For a sample, see Wil-
liams v. JaniKing of Philadelphia, Inc., 837 F.3d 314, 320–321 (3d Cir.
2016) (“[in] distinguishing between employee and independent contrac-
tor status in many different contexts. . . . the right to control, rather
than actual control, is the most important of the factors.”); Langfitt v.
Federal Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir. 2011)
(citing NLRB v. Steinberg, 182 F.2d 850, 857) (5th Cir. 1950)) (“Signif-
icantly, [under the common law test] it is the right and not the actual
exercise of control that is the determining element of employment.”);
Ayala v. Antelope Valley Newspapers, Inc., 327 P.3d 165, 172 (Cal.
2014) (“Significantly, what matters under the common law is not how
much control a hirer exercises, but how much control the hirer retains
the right to exercise.”); Anthony v. Okie Dokie Inc., 976 A.2d 901, 906
(D.C. 2009) (“The determinative factor ‘is whether the employer has
the right to control and direct the servant in the performance of his
work and the manner in which the work is to be done . . . and not the
actual exercise of control or supervision.’”); JFC Temps, Inc. v.
W.C.A.B. (Lindsay), 680 A.2d 862, 864 (Pa. 1996) (“The entity pos-
sessing the right to control the manner of the performance of the serv-
ant’s work is the employer, irrespective of whether the control is actual-
ly exercised.”).
layers of control,” one direct and one indirect.48 Here,
too, the Board’s consideration of indirect control was
supported by the common law. The Restatement ob-
serves that the “control needed to establish the relation of
master and servant may be very attenuated”—in other
words, not “immediate” (as the majority demands).49
And, the Restatement clearly reflects that control may be
indirect, as illustrated by the subservant doctrine address-
ing cases in which one employer’s control is or may be
exercised indirectly, while a second employer directly
controls the employee.50 The subservant doctrine has
been applied by the Federal courts in cases arising under
statutes that incorporate the common-law standard for
determining employment relationships51—including cas-
es under the National Labor Relations Act.52
The majority insists that the “comments to Section 220
of the Restatement clarify that the listed factors [consid-
ered in determining the existence of an employment rela-
tionship] are not concerned with indirect control.” But
the factors that the majority points to (duration of the
relationship, source of the instrumentalities and tools,
location of the work) do not directly involve the question
of control—in contrast to factor (a), the “extent of con-
trol which, by the agreement, the master may exercise
over the details of the work”—and nothing in the Re-
statement comments even hints that indirect control is

48 BFI, 362 NLRB No. 186, slip op. at 14–15.
49 Restatement (Second) of Agency §220(1), comment d (1958).
50 See Restatement (Second) of Agency, §5 (“Subagents and Sub-
servants”) (1958); Warren A. Seavey, Subagents and Subservants, 68
Harv. L. Rev. 658, 669 (1955) (in subservant situation, the “employing
servant . . . is in the position of a master to those whom he employs but
they are also in the position of servants to the master in charge of the
entire enterprise”). Comment e to Restatement §5(2) observes that:
Illustrations of the subservant relation include that between the mine
owner and the assistant of a miner who furnishes his own tools and as-
sistants, the latter, however, being subject to the general mine disci-
pline; the relation between the owner of a building and an employee of
a janitor; the relation between the employees of a branch manager of a
corporation where the branch manager is free to control and pay his
assistants, but where all are subject to control by the corporation as to
their conduct.
51 See, e.g., Schmidt v. Burlington Northern & Santa Fe Railway
Co., 605 F. 3d 686, 689–690 (9th Cir. 2010) (applying Federal Em-
ployers’ Liability Act and finding evidence sufficient to establish em-
ployment relationship between railroad line and employee of railroad-
car maintenance-and-repair company). Cf. Williamson v. Consolidated
Rail Corp., 926 F.2d 1344, 1350 (3d. Cir. 1991) (observing that use of
subservant doctrine is unnecessary where there is evidence of direct
control). See generally Kelley v. Southern Pacific Co., 419 U.S. 318,
325 (1974) (recognizing subservant doctrine for purposes of Federal
Employers’ Liability Act).
52 Allbritton Communications Co. v. NLRB, 766 F.2d 812, 818–819
(3d. Cir. 1985) (upholding Board’s determination that newspaper was
statutory employer of mailroom employees, although second employer
operated mailroom), cert. denied, 474 U.S. 1081 (1986).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 45
immaterial or that only directly exercised control can
establish an employment relationship.
3. Limited and routine
Common law agency doctrine also fully supported the
BFI Board’s decision not to continue the “limited and
routine” control requirement imposed by the TLI-Laerco
line of cases—to the extent that the requirement is mean-
ingful at all. By contrast, the current majority’s decision
to resurrect this restriction lacks any apparent basis in the
common law.
Certainly there may be instances where evidence of
control will be too limited to establish an employment
relationship. But the notion that “routine” control is not
probative of an employment relationship is nonsensical.
If an entity routinely exercises control “over the details
of the work,”53 it is more likely—not less—to be a com-
mon-law employer, and the fact that control might be
“routine” in the sense of not requiring special skill to
exercise is immaterial to the agency inquiry.54
In sum, a careful examination of applicable common-
law agency principles makes clear that in rejecting the
control-related restrictions on joint employment that the
Board had imposed without explanation, the BFI Board
adopted an approach not only consistent with common-
law principles, but also fully informed by them. Not
surprisingly then, like the dissenters in BFI, the majority
here does not (and cannot) explain how it is that the
common law supposedly requires that control be exer-
cised in a particular way, when it does not require that
control be exercised at all.55 Nor does the majority

53 Restatement (Second) of Agency §220(2)(a) (1958).
54 If control of the worker does not require skill, then presumably the
worker himself is not skilled – and thus more likely to be an employee,
not an independent contractor. See Restatement (Second) of Agency
§220(2)(d) & comment i (1958). The old joint-employer test’s refer-
ence to “routine” control as being immaterial may simply be an uncon-
scious echo of the Act’s definition of a “supervisor”—supervisors are
excluded from statutory coverage, in contrast to “employees”—which
refers to certain “authority” as establishing supervisory status, provided
that the “exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.” Sec. 2(11), 29
U.S.C. §152(11) (emphasis added). This formulation has no bearing on
the existence of a common-law employment relationship between a
statutory employer and a statutory employee.
55 The majority doggedly and incorrectly insists that the common
law does not permit finding an employer-employee relationship based
on the existence of reserved or indirect control absent evidence of di-
rect control. Despite the overwhelming body of judicial opinion to the
contrary spanning more than a century—a sampling of which we cite
elsewhere in this opinion— the majority claims this body of law some-
how fails to “rise[] to the level of the common law.” See also NLRB v.
Deaton Inc., 502 F.2d 1221, 1224 (5th Cir. 1974) (citing NLRB v.
Phoenix Mutual Life Insurance Co., 167 F.2d 983, 986 (7th Cir. 1948),
enfg. 73 NLRB 1463 (1947), cert. denied 335 U.S. 845 (1948)) (“nu-
merous decisions have stressed that a company’s right to control, even
if not exercised, makes workers employees.”), enfg. 203 NLRB 1099
acknowledge the subservant doctrine reflected in the
Restatement, despite its obvious parallels with joint-
employer situations arising in Board cases. This failure
speaks volumes, especially given the extraordinary
length and vehemence of the majority opinion.
Having failed to articulate any common-law based jus-
tification for reinstating the pre-BFI joint-employer
standard, the majority is reduced to effectively embrac-
ing that rejected standard and then struggling to find au-
thority that supports resurrecting it. This is not reasoned
decisionmaking, even if BFI were somehow contrary to
the common law of agency (which it emphatically is
not).56 In any case, the authority on which the majority
relies, both to attack BFI and to support the resurrected
joint-employer standard, provides no solid foundation for
the majority’s position.57
As the BFI Board explained,58 the single Supreme
Court decision to address the Board’s approach to the
joint-employer issue, Boire v. Greyhound Corp., 59 dates
to an era when the Board took a significantly more inclu-
sive view than today’s majority adopts. On review, the
Court expressed no disapproval, observing instead that
the question presented was “essentially a factual issue”
for the Board to determine.60 The majority—while
wrongly neglecting Supreme Court decisions that focus
on the Restatement as the source of common-law agency
principles—points to no decision by the Court that either

(1973), cert. denied 422 U.S. 1047 (1975); NLRB v. Cement Transport,
Inc., 490 F.2d 1024, 1027 (6th Cir. 1974) (citing NLRB v. A.S. Abell
Co., 327 F.2d 1, 4 (4th Cir. 1964)) (“It is the right to control, not its
exercise, that determines an employee relationship”), enfg. 200 NLRB
841 (1972), cert. denied 419 U.S. 828 (1974); Madix v. Hochgreve
Brewing Co., 143 N.W. 189, 190 (Wis. 1913) (citing Atlantic Transport
Co. v. Coneys, 82 F. 177, 178 (2d Cir. 1897); Pickens & Plummer v.
Diecker & Bro., 21 Ohio St. 212, 215 (1871); Hardaker v. Idle District
Council, L. R. 1 Q. B. Div. 335, [1895–1899] All ER Rep 311 (judg-
ment by Rigby, LJ)). The majority implies, without explicitly saying,
that judicial opinions describing common-law employment relation-
ships outside the specific context of a joint-employer analysis are irrel-
evant. But surely if the common law controls at all—and we all agree
that it does—what controls is the common definition of “employer” and
“employee,” not some special definition applicable only to joint em-
ployers and ascertainable only by the current Board majority. The
majority’s willful refusal to acknowledge the common law’s clear
emphasis on the existence of control—whether that control is exercised
directly, indirectly, or not at all—underscores the fundamentally arbi-
trary character of its decision today.
56 Put somewhat differently, reversing BFI does not automatically
make the pre-BFI standard a reasonable substitute for the standard
adopted in BFI. The resurrected standard must still be defended on its
own terms. We have shown, however, that it cannot be reconciled with
the common law of agency.
57 See BFI, 362 NLRB No. 186, slip op. at 17 & fn. 94 (addressing
decisions cited by the dissenters there and the majority here).
58 362 NLRB No. 186, slip op. at 8–9.
59 376 U.S. 473 (1964).
60 Id. at 481.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
supports the joint-employer standard resurrected today or
undercuts the standard adopted in BFI. As noted above,
the 1889 Singer decision,61 cited by the majority, actually
supports the proposition that reserved authority can es-
tablish the control necessary to establish an employment
relationship. Supreme Court decisions involving the
“loaned-servant” doctrine, also cited by the majority,
have no bearing on the joint-employer issue in cases like
this one.62 And the same is true of the cited decision
involving the Court’s analysis of a secondary-boycott
issue under the National Labor Relations Act.63
The majority points to no decision, meanwhile, in
which the joint-employer standard it resurrects today was
upheld by a Federal appellate court in the face of an ac-
tual challenge that the standard was inconsistent with
common-law agency principles. The majority cites Sec-
ond Circuit cases as endorsing the requirements that con-
trol be “direct and immediate” and not “limited and rou-
tine” in affirming Board decisions. But there is no indi-
cation in those decisions that the court’s view reflected

61 132 U.S. at 522.
62 As the majority-cited decision in Shenker v. Baltimore & Ohio R.
Co., 374 U.S. 1 (1963), makes clear, the “loaned servant” doctrine
involves the principle that “when the nominal employer furnishes a
third party ‘with men to do the work, and places them under his exclu-
sive control in the performance of it, (then) those men become pro hac
vice the servants of him to whom they are furnished.’” Id. at 6 (empha-
sis added; citation omitted). In that context, where the issue is which
entity is liable for the negligence of the servant, “immediate control and
supervision is critical in determining for whom the servants are per-
forming services.” Id. In the joint-employer context, of course, neither
employing entity has “exclusive control” of the worker; rather, control
is shared, and the services are performed for both entities.
63 The issue in NLRB v. Denver Building & Construction Trades
Council, 341 U.S. 675 (1951), was whether (as the Board had found) a
labor union violated Sec. 8(b)(4)(A) of the Act “by engaging in a strike,
an object of which was to force the general contractor on a construction
project to terminate its contract with a certain subcontractor on the
project.” Id. at 677. The relevant statutory language prohibits a strike
“where an object thereof is . . . forcing or requiring . . . any employer or
other person … to cease doing business with any other person.” Id. at
677 fn. 1 (citing 29 U.S.C. §158(b)(4)(A), current version at 29 U.S.C.
§158(b)(4)(i)(B)). The Court agreed with the Board’s conclusion that
the general contractor and the subcontractor were “doing business”
with each other. Id. at 690.
It was in that context that the Court observed that “the fact that the
contractor and the subcontractor were engaged on the same construc-
tion project, and that the contactor had some supervision over the sub-
contractor’s work, did not eliminate the status of each as an independ-
ent contractor or make the employees of one the employees of the
other,” such that the “doing business” element could not be satisfied.
Id. at 689–690. The Court’s decision in no way implicated the com-
mon-law test for an employment relationship or the Board’s joint-
employer standard. As a general matter, to say that a general contractor
and a subcontractor are independent entities (e.g., not a “single em-
ployer”) is not to say that they can never be joint employers, if it is
proven that the general contractor retains or exercises a sufficient de-
gree of control over the subcontractor’s workers to satisfy the common-
law test of an employment relationship.
its understanding of common-law agency doctrine or was
based on a careful review of that doctrine. Nor was the
court’s “endorsement” much more than a determination
that the Board had adhered to its own precedent in apply-
ing “direct and immediate” restrictions and not “limited
and routine” restrictions.64
Meanwhile, those cited cases in which Federal appel-
late courts have invoked the common law, and have re-
ferred to the lack of direct and immediate control by the
putative employer, involve situations far removed from
the sort of joint-employer situations confronted by the
Board and far more attenuated theories of control than
BFI advanced. In Gulino,65 a Title VII case, the Second
Circuit rejected the argument that New York’s state edu-
cation department was the employer of New York City
school teachers, based on the control of curriculum and
credentialing. In Wal-Mart,66 the Ninth Circuit rejected
the argument that Wal-Mart was the joint employer of its
foreign suppliers’ employees, based primarily on a code
of conduct included in Wal-Mart’s supply contracts spec-
ifying basic labor standards that those suppliers promised
to meet. Neither Gulino, nor Wal-Mart speaks to the
issues involved in this case.67
The majority cites various decisions in which, accord-
ing to the majority, the courts have “implicitly limited
their analysis to looking for direct and immediate con-
trol.” As the BFI Board correctly observed, however,
“none of these decisions hold, even implicitly, that the
existence of indirect control would not be probative of
employer status.”68 And, as already explained, the Re-
statement not only fails to support the proposition that
the indirect control is immaterial, it affirmatively ad-
dresses situations (i.e., those covered by the subservant

64 See Service Employees Int’l Union, Local 32BJ v. NLRB, 647 F.3d
435, 443 (2d Cir. 2011) (rejecting union’s assertion that in applying
joint-employer standard, Board “articulated a ‘new rule that represents
a significant departure from settled law’ and is inconsistent with agency
precedent”).
65 Gulino v. N.Y. State Education Dept., 460 F.3d 361 (2d Cir. 2006),
cert. denied 554 U.S. 917 (2008).
66 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 680 (9th Cir. 2009).
67 Wal-Mart involved claims filed under California state law and re-
moved to Federal court based on diversity jurisdiction. Id. at 680. In
cases—unlike Wal-Mart—that do raise a plausible claim that a com-
mon-law employment relationship exists, California state courts have
long adhered to the generally accepted proposition that the retained
right to control, not the exercise of control, is dispositive. See, e.g.,
Ayala v. Antelope Valley Newspapers, Inc., above; Hillen v. Industrial
Accident Commission, 250 P. 570, 581 (Cal. 1926) (citations omitted)
(“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.”).
68 BFI, supra, 362 NLRB No. 186, slip op. at 17 fn. 94 (emphasis
omitted).
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 47
doctrine) in which indirect control provides the basis for
finding an employment relationship.
Finally, as did the BFI dissenters, the majority insists
that BFI—despite everything that the Board there plainly
said and carefully explained—is not predicated on com-
mon-law agency principles at all, but rather is somehow
secretly based on the “economic realities” test reflected
in the Supreme Court’s Hearst decision,69 and subse-
quently rejected by Congress in the 1947 Taft-Hartley
Amendments to the Act. As stated in BFI,70 the majori-
ty’s assertion is recklessly false at a minimum—and it
confirms that its decision today is anything but an exer-
cise in reasoned decisionmaking.
C.
The majority’s incorrect assertion that BFI was im-
properly based on “economic realities” is particularly
ironic, given that the majority devotes the rest of its deci-
sion to deploring the supposed real-world consequences
of the BFI test. Here, the majority presents a nearly in-
terminable parade of horribles and hypotheticals. In the
majority’s account, BFI, among other things, severely
destabilized bargaining relationships, imposed “unprece-
dented bargaining obligations on multiple entities in a
wide variety of business relationships,” created pervasive
uncertainty as to when bargaining obligations would ac-
crue, and extended coverage of the National Labor Rela-
tions Act to small businesses that were not previously
subject to Board jurisdiction. This is nonsense. And, as
we have already made clear, the majority presents no
evidence that any of these scenarios have come to pass
since BFI was decided. At the same time, the majority’s
refusal to solicit briefing—the most logical way to col-
lect feedback about BFI from interested parties—makes
the majority’s irresponsibly speculative assessments im-
possible to take seriously. The majority’s decision is
long on rhetoric, but short on reality.
At center, many of the majority’s fears—that bargain-
ing would become unreasonably fragmented and com-
plex, for example—evince a fundamental discomfort
with the joint-employer concept itself, which has been
recognized by the Board and the courts for decades. The
hypotheticals presented by the majority merely exagger-
ate the challenges that theoretically could arise if and
when multiple employers (who had voluntarily entered
into business relationships with each other) were re-
quired to engage in collective bargaining. As the BFI
Board correctly noted, employers and unions have long
managed to navigate these types of challenges, and none

69 NLRB v. Hearst Publications, 322 U.S. 111 (1944).
70 362 NLRB No. 186, slip op. at 17.
of the disasters forecast here have materialized.71 At an
even deeper level, the majority’s opinion reveals a trou-
bling lack of commitment to the institution of collective
bargaining—the mechanism at the heart of the statute
and one that has proven sufficiently flexible to deal with
the obstacles posed by multiparty negotiations.
Tellingly absent from the majority’s endless recitation
of potential hardships for employers is any mention of
the concern that should undoubtedly be foremost: ensur-
ing that the statutory promise of collective bargaining
extends to as many workplaces and working arrange-
ments as the Act contemplates. The majority argues
again and again that the pre-BFI standard it resurrects is
necessary to ensure predictable results. But, for the rea-
sons discussed, that supposed predictability comes at the
expense of the goals of the statute. Indeed, over the
course of its lengthy decision, the majority makes no
genuine effort to address the challenging issue that BFI
presented: how best to “encourag[e] the practice and pro-
cedure of collective bargaining” when otherwise bar-
gainable terms and conditions of employment are under
the control of more than one statutory employer. The
predictability that the majority achieves here is a one-
sided assurance to employers that, by retaining a nominal
distance from the supervision of workers, they can exert
control and still avoid statutory bargaining obligations.72
IV.
The issue of joint employment under the National La-
bor Relations Act is undeniably important. The Board
should address this issue with care and with the full ben-
efit of public participation. And it did so—in BFI. It is
no overstatement to say that the Board’s decision in BFI
was the most fully explicated joint-employer decision in
the history of the Board. The standard it adopted was
firmly grounded in the common law, while tailored to the
aims of the National Labor Relations Act. Today’s re-
flexive reversal of BFI, in contrast, reflects neither a
grasp of common-law agency principles, nor a commit-
ment to the policy of Federal labor law. The majority
has simply failed to engage in reasoned decision-making,
in favor of reaching a desired result as quickly as possi-
ble. Because we cannot join such an unfortunate exer-
cise, we dissent.

71 362 NLRB No. 186, slip op. at 20.
72 Contrary to the majority, BFI did not modify any other precedent
under the Act, including the secondary boycott doctrine, or change the
way that the Board’s joint-employer doctrine interacted with other rules
and restrictions under the Act. 362 NLRB No. 186, slip op. at 20 fn.
120. Finally, and contrary to the majority’s assertion, BFI did not
“fundamentally alter[] the law” governing various legal arrangements
between entities, including lessor-lessee, parent-subsidiary, franchisor-
franchisee, and contractor-consumer relationships. Id. None of those
scenarios were before the Board in BFI.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
Dated, Washington, D.C. December 14, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for participating in a strike or engaging in
any other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Dakota Upshaw, Cole Hinkhouse, Austin
Hovendon, Alezzandro Campbell, David Newcomb, Ron
Senteras and Nicole Pinnick full reinstatement to their
former jobs or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make these employees whole for any loss of
earnings and other benefits resulting from their discharg-
es, less any net interim earnings, plus interest, plus rea-
sonable search-for-work and interim employment ex-
penses.
WE WILL compensate them for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of these employees, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that their discharges will not be used against
them in any way.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND
BRANDT CONSTRUCTION CO., SINGLE AND JOINT
EMPLOYERS
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-163189 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Fredric Roberson and Patricia McGruder, Esqs., for the Gen-
eral Counsel.
James Faul, Esq. (Hartnett, Gladney Hetterman, L.L.C.), for
the Charging Parties.
Stanley E. Niew and David A. Courtright, Esqs. (Law Offices of
Stanley E. Niew, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was tried in Davenport, Iowa from July 12 to 14, 2016. The
complaint alleged that Hy-Brand Industrial Contractors, Ltd.
(Hy-Brand) and Brandt Construction Co. (Brandt) are single
and/or joint employers (collectively called the Respondent),
and terminated Dakota Upshaw, Cole Hinkhouse, Austin
Hovendon, Alezzandro Campbell, David Newcomb, Ron Sen-
teras, and Nicole Pinnick in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act).
On the entire record, including my observation of the wit-
nesses’ demeanors, and after considering post-hearing briefs, I
make the following
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 49
FINDINGS OF FACT1
I. JURISDICTION
At all material times, Hy-Brand, a corporation located in
Muscatine, Iowa, has performed construction services as a gen-
eral contractor. Annually, it provided services valued in excess
of $50,000 to clientele located outside of Iowa. It, thus, admits,
and I find, that it is an employer engaged in commerce, within
the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, Brandt, a corporation located in Milan,
Illinois, has performed construction services as a highway
builder. Annually, it provided services valued in excess of
$50,000 to clientele located outside of Illinois. It, thus, admits,
and I find, that it is an employer engaged in commerce, within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Brandt performs public works and other construction pro-
jects.2 It is a family business, which is owned by Charles
Brandt and his 3 sons, Terrance, Todd, and Trent. It employs
140 employees, who act as laborers, operators, ironworkers,
carpenters, masons and drivers. Terrance Brandt (i.e. the eldest
son) oversees all major decisions, and supervises Human Re-
sources Director Lisa Coyne, Safety Director Anna Copeland,
and Comptroller Kelly Bisbee.
Hy-Brand erects steel warehouses and other structures, and
employs about 10 ironworkers, carpenters, and masons. These
workers are supervised by General Manager Randy Sackville
and Superintendent Mike Thurman. Sackville reports to Ter-
rence Brandt.
B. Comparing Operations
1. Management and Ownership
The following chart is descriptive:
Individual Brandt Hy-Brand
Charles W.
Brandt
President (50%
interest)
Same role
and inter-
est
Terrence L.
Brandt
Vice-President
(25.5% interest)
Same role
and inter-
est
Todd L.
Brandt
Secretary(12.5%
interest)
Same role
and inter-
est
Trent L.
Brandt
Treasurer (12%
interest)
Same role
and inter-
est
(GC Exh. 2.)

1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations, and undisputed evidence.
2 Its projects include: asphalt and concrete paving of interstate roads
and municipal airports; new and rehabilitative structural concrete work;
water line and sewer construction; and railway construction.
2. Labor Policy and Control
a. Workplace Rules
Both entities maintain these identical workplace rules: Equal
Employment Opportunity (EEO policy); Workplace Harass-
ment (harassment policy); Family and Medical Leave Act
(FMLA policy); and Drug Free Workplace (the Drug policy).
(GC Exhs. 3–10.) These policies were drafted by Terrence
Brandt and Brandt’s Coyne. Brandt and Hy-Brand employees
are also subject to common safety and mobile phone rules. Hy-
Brand has its own safety manual (GC Exh. 11), which was
drafted by Hy-Brand’s Sackville and Brandt’s Copeland.
b. Payroll and Benefit Administration
Brandt’s Coyne processes payroll and direct deposit, handles
health, life, and dental insurance benefits, and maintains W-2
and tax records for both entities. Terrence and Todd Brandt
authorize direct deposit releases for both entities.
c. Annual Meeting
Hy-Brand and Brandt employees jointly attend an annual
meeting, which is led by the Brandt family. (GC Exhs. 12–14.)
Common employment, benefit, safety, labor relations, and
training policies are reviewed at this meeting. (GC Exh. 13.)
d. Hiring and Firing
Terrence Brandt makes firing decisions for both entities.
(GC Exhs. 16, 18) (Hy-Brand); (GC Exh. 20) (Brandt). Hy-
Brand’s Sackville independently makes hiring decisions, alt-
hough he is managed by Terrence Brandt, who is empowered to
reverse his decisions.
e. Common Benefits
Employees of both entities receive identical 401K, health,
dental and life insurance benefits, and are covered under the
same workers compensation policy. Hy-Brand reimburses
Brandt for such benefits. (R. Exh. 32.)
f. Safety Servicing
Brandt’s Copeland provides safety services to Hy-Brand.
She visits jobsites, provides training, and cites deficiencies. (R.
Exh. 36; Tr. 327.)
3. Interrelated Operations
a. Personnel
Certain operations are interrelated. Hy-Brand’s Upshaw tes-
tified that he worked alongside Brandt employees on several
projects, where he dually reported to Brandt and Hy-Brand
managers. He recalled sharing a scissor lift with Brandt’s Ad-
am Warren on a GSTC warehouse project in 2015,3 and related
that Brandt and Hy-Brand workers performed the same work
(i.e., rigging and steel erection) at this jobsite. Hy-Brand’s
Hinkhouse and Hovendon, and Brandt’s Senteras, provided
similar testimony regarding the GSTC jobsite.4 Senteras added
that he also worked with Hy-Brand personnel at the Marquis

3 All dates are in 2015, unless otherwise indicated.
4 Hy-Brand’s Newcomb indicated that, at the GTSC job, Brandt op-
erated a crane, while Hy-Brand worked the roof.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
Energy plant and John Deere warehouse jobsites. No examples
were offered of employees transferring between entities.
b. Equipment
Hy-Brand’s Upshaw recalled using Brandt equipment (e.g., a
telehandler and skid steer). Hy-Brand rented large-scale
equipment and rolling stock (e.g., cranes) from Brandt.
c. Services and Billing
Hy-Brand performs construction services for Brandt, and
then bills Brandt for such services. (R. Exh. 21.) The opposite
is also true. (R. Exh. 22; GC Exhs. 26–32.)
C. Discharges
1. Upshaw, Hovendon, Campbell and Hinkhouse
On July 8, Upshaw, Hovendon, and Campbell submitted let-
ters to Hy-Brand announcing their decision to strike over un-
safe working conditions, and substandard wages and benefits;
they also asked to meet over their grievances.5 (GC Exhs. 15,
17.) Their letters did not describe an intention to resign.
Thereafter, they began their strike and left the jobsite.6 Alt-
hough Hinkhouse did not submit a strike letter, he simultane-
ously joined the strike and stated his intention to strike to his
supervisor, Larry Wendt.7 Upshaw, Hovendon, Campbell, and
Hinkhouse, who each possessed strong demeanors and were
highly consistent, testified that their sole intent was to strike,
i.e. not resign.8 On July 10, Terrence Brandt notified the em-
ployees that they had quit, and terminated their employment.
(GC Exhs. 16, 18, 23; R. Exh. 8A.)
2. Newcomb
Newcomb testified about the safety concerns that he had,
while he was employed at Hy-Brand (e.g., the absence of a
safety spotter and insufficient safety gear). He stated that, con-
sequently, he told Hy-Brand supervisor Andrew Campbell that
he was joining the strike on July 23. He also credibly denied
resigning. On July 30, Terrence Brandt advised him that he had
quit. (GC Exh. 24.)
3. Senteras
On October 12, Senteras joined the strike. (GC Exh. 19.)
He credibly stated that he did not resign. On October 12, Ter-
rence Brandt advised him that he had resigned. (GC Exh. 20.)
4. Pinnick
On November 18, Pinnick joined the strike. (GC Exh. 21.)
On November 19, she received a similar discharge letter. (GC
Exh. 22.) In a November 25 letter, she advised Terence Brandt
that she did not resign, was striking, and requested a meeting.
(R. Exh. 9A.) He did not reply.
5. Terrence Brandt’s Contentions
Terrence Brandt averred that the workers were not fired,

5 Campbell’s strike letter was not produced.
6 The strike was unaccompanied by picketing; it solely involved
withheld labor.
7 Wendt was never called to rebut such testimony, which has been
credited.
8 Such testimony was consistent with their strike letters and other
undisputed record evidence.
were not classified as resignations, and he knew that it was
unlawful to fire strikers. (Tr. 517.) He said that only Hink-
house was fired because he never tendered a strike letter.
6. Credibility Resolution
Terrence Brandt’s claim that the strikers were neither fired
nor handled as resignations is incredible. This testimony is
irreparably contradicted by his letters, which repeatedly de-
scribed their resignations. His letters omitted any discussion of
the strike or their connected employment rights. I find, accord-
ingly, that he fired the strikers, and falsely stated that they had
quit.
III. ANALYSIS
A. Single Employer Status9
Brandt and Hy-Brand are a single employer. In Cimato
Brothers, Inc., 352 NLRB 797, 798 (2008), the Board held:
In determining whether two nominally separate employing
entities constitute a single employer, the Board examines four
factors: (1) common ownership, (2) common management,
(3) interrelation of operations, and (4) common control of la-
bor relations. No single factor is controlling, and not all need
be present. Rather, single-employer status ultimately depends
on all the circumstances. It is characterized by the absence of
an arm’s-length relationship among seemingly independent
companies.
This inquiry assesses whether nominally “separate corpora-
tions are not what they appear to be, [and] that in truth they are
but divisions or departments of a single enterprise.” NLRB v.
Deena Artware, Inc., 361 U.S. 398, 402 (1960). Centralized
control of labor relations is, generally, considered to be the
most important factor in this analysis. See, e.g., Geo. V. Hamil-
ton, Inc., 289 NLRB 1335, 1337 (1988). “[C]ommon owner-
ship, while significant, is not determinative in the absence of
centralized control over labor relations.” Mercy Hospital of
Buffalo, 336 NLRB 1282, 1284 (2001).
1. Common Ownership and Management
Common ownership and management favors single employ-
er status. Both entities have the same owners in identical per-
centages, with common presidents, vice-presidents, secretaries,
treasurers, safety officers, and human resources officials.
2. Central Control of Labor Relations
This factor heavily supports single employer status. First,
Hy-Brand lacks a human resources department and delegates
this key labor relations function to Brandt, which administers
payroll, tax, and direct deposit matters for both entities. Sec-
ond, both entities are subject to identical EEO, harassment,
FMLA, drug, safety and cell phone polices. Third, both entities
offer identical health, life, dental, and retirement benefits,
which are administered by Brandt. All workers are covered
under the same workers compensation insurance policy.
Fourth, all employees attend an annual meeting, which address-
es several common employment issues. Additionally, Terrence
Brandt makes firing decisions at both entities, and Copeland

9 This allegation is listed under complaint par. 3.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 51
provides safety consulting services to both entities.
3. Interrelationship of Operations
This factor favors single employer status. Employees of
both entities work together on certain projects, and periodically
share equipment. Brandt rents equipment and machinery to
Hy-Brand, and receives reimbursement. Hy-Brand performs
construction services for Brandt, and vice versa, and then bills
the other entity. No evidence was presented, which established
that these arrangements were arms-length deals involving a
market rate of compensation.
4.Conclusion
Respondent is a single employer. All factors were satisfied;
there is a clear lack of an arm’s-length relationship.
B. Joint-Employer Status10
Respondent is also a joint employer, on the basis of much of
the same evidence that prompted a single employer finding. In
BFI/Newby Island Recyclery, 362 NLRB No. 186, slip op. at 15
(2015), the Board described the following joint employer test:
The Board may find that two entities …are joint employers of
a single work force if they are both employers within the
meaning of the common law, and if they share or codetermine
those matters governing the essential terms and conditions of
employment. [citations and footnotes omitted].
The Board does not require actual control over essential
terms and conditions of employment; it is sufficient that the
alleged joint employer has the authority to do so.11 Terms of
employment such as hiring, firing, disciplining, supervising and
directing employees as well as wages and hours are examined
to determine whether such authority exists. Other examples
include dictating the number of workers, controlling schedul-
ing, seniority and overtime, assigning work, and determining
the manner and method of work. Id.; see also, Retro Environ-
mental, Inc., 364 NLRB No. 70, slip op. at 5 (2016).
Respondent is a joint employer; employees’ essential terms
and conditions of employment are jointly governed. Both
entities share payroll, tax, overtime, timesheets, and direct de-
posit duties. They administer identical workplace policies and
rules covering EEO, harassment, FMLA, drug, safety, workers
compensation, and cell phone issues. They share in the admin-
istration of several identical benefits, including health, life,
dental, and retirement benefits. Day-to-day safety issues are
jointly administered by Copeland, who services both Brandt
and Hy-Brand. Joint governance is reinforced at annual meet-
ings. Finally, VP Terrence Brandt makes firing decisions at
both entities and is unequivocally empowered to make all key
personnel decisions, even though he delegates many ministerial
tasks to lower level supervision.

10 This allegation is listed under complaint par. 4.
11 Thus, the Board overruled prior precedent to the extent those cas-
es held that mere authority to control employees’ terms and conditions
of employment was an inadequate indicia of joint employer status
unless the authority was exercised directly and immediately and not in
a limited and routine manner. BFI, supra, slip op. at 16.
C. Discharge Allegations12
Respondent unlawfully discharged Upshaw, Hinkhouse,
Hovendon, Campbell, Newcomb, Senteras, and Pinnick (collec-
tively called the strikers). They were fired for engaging in a
work stoppage, and were intentionally mislabeled as resigna-
tions. Respondent failed to show that they abandoned their
employment before their firings.
1. Legal Precedent
In Atlantic Scaffolding Co., 356 NLRB 835 (2011), the
Board held as follows:
[W]hen an employer asserts that employees were discharged
because they would not return to work after commencing a
work stoppage, the assertion suggests that the discharge was
for engaging in the work stoppage itself…. In order to show
that employees truly abandoned their jobs, an employer must
present “unequivocal evidence of intent to permanently sever
[the] employment relationship.” ….
Where …employees are terminated for engaging in a protect-
ed concerted work stoppage, Wright Line is not the appropri-
ate analysis, as the existence of the 8(a)(1) violation does not
turn on the employer’s motive…. Rather, when the conduct
for which the employees are discharged constitutes protected
concerted activity, “the only issue is whether [that] conduct
lost the protection of the Act because … [it] crossed over the
line separating protected and unprotected activity.”
Id. at 838 (citations omitted).
2. Analysis
The strikers engaged in protected activity, when they con-
ducted a work stoppage regarding safety, wages and benefits.
The essence of their work stoppage was repeatedly communi-
cated in their strike letters.13 (GC Exhs. 15, 17, 19, 21, 22.)
Respondent did not show that they had quit, as asserted in
their termination letters. The strikers credibly testified that they
did not resign, and such testimony was consistent with their
strike letters. Respondent, as a result, fell vastly short of prov-
ing that they “unequivocal[ly] . . . intend[ed] to permanently
sever [their] employment relationship.” L.B. & B. Associates,
Inc., 346 NLRB 1025, 1029 (2006), enfd. 232 Fed. Appx. 270
(4th Cir. 2007). Respondent similarly failed to show that the
strikers lost the protection of the Act by engaging in miscon-
duct. See Atlantic Scaffolding Co., supra 356 NLRB at 836.
There was no showing in this regard.
In sum, the record clearly shows that the Respondent fired
the strikers because they participated in a protected, concerted
work stoppage. Any claims that they had quit or lost the Act’s
protection was a sham. Their discharges, therefore, violated the
Act.
CONCLUSIONS OF LAW
1. Brandt and Hy-Brand, which collectively comprise the
Respondent, are single and joint employers, and are jointly and
severally liable for the violations found herein.

12 These allegations are listed under complaint pars. 6 and 7.
13 Knowledge of the strike was also conceded by Terrence Brandt.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
2. Brandt and Hy-Brand are individually, and as single and
joint employers, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. Respondent violated Section 8(a)(1) by discharging
Upshaw, Hinkhouse, Hovendon, Campbell, Newcomb, Sen-
teras, and Pinnick for participating in a work stoppage.
4. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent committed unfair labor prac-
tices, it is ordered to cease and desist and to take certain affirm-
ative action designed to effectuate the Act’s policies. It must
offer the strikers full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed. It must also make them whole for
any loss of earnings and other benefits suffered as a result of
their discrimination. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Moreover, in accordance
with King Soopers, Inc., 364 NLRB No. 93 (2016), it shall
compensate them for their search-for-work and interim em-
ployment expenses, if any, regardless of whether those expens-
es exceed interim earnings. Search-for-work and interim em-
ployment expenses shall be calculated separately from taxable
net backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. It is further ordered to compensate the
strikers for any adverse tax consequences associated with re-
ceiving a lump-sum backpay award and to file with the Region-
al Director a report allocating the backpay award to the appro-
priate calendar year. AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016). It is must also remove from its files any refer-
ences to these unlawful discharges, and within 3 days thereafter
to notify the strikers in writing that this has been done and that
their discipline will not be used against them in any way. It
shall also post the attached notice in accord with J. Picini
Flooring, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended14
ORDER
Respondent, a single and joint employer, which consists, in-
ter alia, of Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) of
Muscatine, Iowa, and Brandt Construction Co. (Brandt) of Mi-
lan, Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Firing or otherwise discriminating against its employees
for participating in a work stoppage or engaging in any other
protected concerted activities.

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Upshaw, Hinkhouse, Hovendon, Campbell, Newcomb, Sen-
teras and Pinnick full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make these employees whole for loss of earnings and
other benefits suffered due to the discrimination against them,
as set forth in this decision’s remedy section.
(c) Compensate these employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board or-
der, a report allocating the backpay award to the appropriate
calendar year.
(d) Within 14 days from the date of this Order, remove from
its files any reference to these unlawful discharges, and within
3 days thereafter, notify the strikers in writing that this has been
done and that their discharges will not be used against them in
any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by Region 25, post at its Mi-
lan, Illinois and Muscatine, Iowa facilities copies of the at-
tached notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone out of
business or closed the facility involved in these proceedings, it
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by it at any time since July 10, 2015.
g. Within 21 days after service by the Region, file with the

15 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND BRANDT CONSTRUCTION CO. 53
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
has taken to comply.
Dated Washington, D.C. November 14, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against
you for participating in a strike or engaging in any other pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights set
forth above.
WE WILL within 14 days from the date of the Board’s Order,
offer Upshaw, Hinkhouse, Hovendon, Campbell, Newcomb,
Senteras, and Pinnick full reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make these employees whole for any loss of earn-
ings and other benefits resulting from their discharges, less any
net interim earnings, plus interest, plus reasonable search-for-
work and interim employment expenses.
WE WILL compensate them for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director, within 21 days of the date
the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate
calendar year for these employees.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of these employees, and WE WILL, within 3 days there-
after, notify them in writing that this has been done and that
their discharges will not be used against them in any way.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. AND
BRANDT CONSTRUCTION CO., SINGLE AND JOINT
EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/25-CA-163189 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273–
1940.