July 23, 2021

Susan Garea - Beeson Tayer Bodine

Susan Garea - Beeson Tayer Bodine

Susan Garea

Susan and I talk about the BFI (Browning Ferris) NLRB Decision and Rule and some other things.

Specializing in public and private sector labor law on behalf of labor organizations and individual employees.

Northwestern...


Susan Garea

Susan and I talk about the BFI (Browning Ferris) NLRB Decision and Rule and some other things.

Specializing in public and private sector labor law on behalf of labor organizations and individual employees.

Northwestern University, B.A., African-American Studies; Economics (2001) University of California at Los Angeles, School of Law, J.D. (2008), graduate of David J. Epstein Program in Public Interest Law and Policy and with a concentration in Critical Race Studies

Member, California State Bar (2008); U.S. District Courts for the Northern, Eastern, Southern and Central Districts of California; United State Court of Appeal for the Ninth Circuit and D.C. Circuit; State Bar Labor and Employment Section. - Member, Board of Directors, AFL-CIO Lawyers Coordinating Committee. - Contributing Author to Working for Justice: The L.A. Model of Organizing and Advocacy (Cornell University Press). - Previous work experience includes Associate attorney, Gilbert & Sackman (2008-2010) and elementary school teacher (2001-2005).


Unionist is hosted by Phil Ybarrolaza in Oakland, CA.
This episode was recorded in Downtown Oakland California. Unionist is a proud member of the Podifornia (podifornia.com) podcast network.

Transcript

Phil: I'm thinking, taking a J and J just for fun. 

Susan: How is that? Is that, 

Phil: is that off the table? I don't know if you can do that. Can you do that?

I don't know. Okay. 

Should we talk about. 

  Susan: Yeah, totally. I mean, I'm kind of, I feel like this is your deal. Oh, okay. 

Phil: Well, no, that's, you know, so you gotta warm up a little bit, get used to things. 

Susan: Yeah. I mean you tell me, do I sound okay? Sound great. Okay. Let's 

Phil: do that. And I lured you in with talking about Browning-Ferris, but really, you know, we just talk, 

Susan:  where do you want start then? 

Phil:  Where you from New Jersey, like born in New Jersey. 

Susan: I was born in Virginia, moved to New Jersey when I was two.

So I have no actual memories of life in Virginia. 

Phil: So it's New Jersey. I mean, it's, it's all where you identify with. 

 By the way, Susan Garcia, shareholder of Beeson Taylor boat beam butadiene.  very prominent firm in Oakland, California been doing labor law forever. 

So New Jersey high school, what was high school like in New Jersey? Is it the same as around here, California? 

Susan: I haven't been to high school in California, so it's kind of hard for me to judge, but this, the architecture is quite different.

It's older and they they're buildings that have inside hallways. I don't know how they build inside 

Phil: insight hallways. You know, that's funny. I didn't. Didn't even think of that. 

Susan: Yeah. Because you know, snow. Yeah. Cold and rain and all that, which here we don't really get any rain. So rain out here. Yeah.

The school architecture is very different. That's one thing I've 

Phil: noticed. Well, your kids are eventually going to go to school around here. Right? 

Susan: I mean, I do hope they go to high school 

Phil: with aim high. That's it? I think it's mandatory. I know when, well, so then where'd you go to college? 

Susan: I went to Northwestern because what I'm 

Phil: trying to get at 

Susan: is, is a, a school that's located.

I feel like I should know outside of Chicago and like that first Northern suburb, Evanston, Illinois. Right. It's part of the big 10, but it's kind of like fake big 10 because is it 

Phil: the backend still or what is it? Oh, I don't even know. I don't think it is a sports fan.

Susan: I wouldn't, I wouldn't presume to call myself a fan.

I will say here, I moved up to the bay area in 2010. Right. As the giants were about to win or that season where they won their first world series. So I got so, and then it was like every other year for those three. And that was fun. We'd go watch the games at the bars. And it was a lot of fun. So I guess I was like a fan for 

Phil: those.

Well, what about in college? What did, what did, what did you do other than study or did you just study? 

Susan: What did I 

Phil: do in college other than studying? Did you do your BA in north Northwestern? Where'd you go to law school? I'm assuming you went to law. 

Susan: I did go to law school. It is possible in California to practice law without going to law school.

It's one of the few states. That's what Kim Kardashians. Did you ever see her Insta? Is that really a thing? Yeah. She posted a picture of herself, like studying for the bar or bikini.  I actually think it's great. You know, she kind of, you remember she got all that PR publicity around the like prisoner release work that she was doing right.

So you can in California practice law, without going to law school, you have to apprentice under someone. And then so you have 

Phil: to be Prudential then pass the bar and 

Susan: yes, you 

Phil: have to pass the bar.

So it's not as easy as like marrying somebody in California. No. Do you know, do you know. You can just pay, you can get a permit to marry people to be a justice 

Susan: of the peace. Yeah. Yeah. That's what we did for our wedding. My husband and I had friends marry us. Yeah. It was great. They did a good job. 

Am I totally unbiased opinion?

So, 

Phil: so where'd you go to school at Northwestern 

Susan: for undergrad. And then I taught elementary school in Southern California for four years. Yeah. At this little carve-out school district called Lynwood unified school district, which had kind of an interesting history because it was kind of right. Smack dab in the middle of Los Angeles.

Oh, I feel 

Phil: like I know this, we might've talked about this 

Susan: before. There was a bunch of a bunch of various school districts that seceded, you know, basically. To for like white flight purposes. And so the school district used to be like, it used to be like a very white community and then it kind of changed over and became predominantly black.

And then it changed over again. By the time I got there as a teacher, it was predominantly Latino. So it was an interesting, it was like a very interesting place, terribly run school district 

Phil: school district. Unfortunately, 

Susan: it's very hard, but I mean, right. They would have done better being a part of 

Phil: LA USD.

Yeah. But like most things with people there's, it's territorial and you know, 

Susan: it's very interesting. I've thought a lot about the structure of school district governance given this past year and how Oh, can you imagine morally so many school districts performed in my humble opinion. And yeah. And what is this?

Phil: Let's do that. Cause we both have kids. We talk about our kids, but distance learning was something nobody had on their, you know, bingo card for 2021 when the whole band DEMEC started. Yeah. Yeah. That's rough. And you were doing kindergarten. 

Susan: Yeah. So my, I have two kids. My youngest is still in preschool at school.

So they returned to school in person in July because it is just private. Right. And then my daughter was in kindergarten when they went in March of 2020. So she now finished first grade. So she basically. Three quarters of the year of kindergarten in person and then distance ever since, but I'm really excited about her returning to school in person 

Phil: for a second grade.

Just getting out in the sun. I know. 

Well, so Browning, Ferris, which is kind of what brings us here. Yeah. How did that begin? Famous infamous joint employer decision, which has kind of had nine lives, right. 

Susan: Basically nine lines. I mean, to tell the procedural history of this case will take 20 minutes.

Yeah, that's good. I got nothing 

Phil: really exciting to talk about. No, I'm not dry at all. But that was, 

Susan: that was a civil procedure class, 

Phil: but that was solid waste in San Francisco. Teamsters, local three 50, right? 

Susan: Yeah, it was the Milpitas down the peninsula, but yeah, Teamsters local three 50 is the, is the client, the union that organized these recycle workers, you know, kind of lowest on the totem pole when it comes to the solid waste industry, they're the ones sifting through.

I've done solid waste. 

Phil: They're 

Susan: sifting through the Merv. Yeah, exactly. Or the Murph Murph Irv. 

It's it's it's hard work and it's unpleasant work 

Phil: is a material recycled 

Susan: facility. That's right. That's why Murph makes more sense. 

Phil: I know I slang it.

 Susan: Yeah. So the, the, so teams, there's local three 50 organized these guys and filed for an a union election with the labor board. Right. And the company, which is Browning-Ferris BFI. Yep. Said, oh, we're not the, we're not the employer, our employees, they they're employed by the staffing agency. 

Phil: So they were a staffing agency, 

Susan: right?

Yeah, exactly. It's 

Phil: like classic farm worker stuff too. 

Susan: Very classic farm worker stuff. So this was, was, yeah, the name of the staffing company was lead point. And they, they were the ones that issued the paychecks and it's all like the sheen of employment through the staffing agency and Browning-Ferris Ferris and we're known even not only.

And this 

Phil: is before AB five and all of that right 

Susan: before AB five passed. I mean, all the time there, the concept of joint employment 

Phil: back up and cover it. So cover the concept of joint employment, which to me seems like. A legal vehicle that companies have used to avoid their responsibilities, 

Susan: there are a couple of different ways that you might have a joint employment set up, but the way that we saw it in and Ferris, and I think the way that we most typically see it is where you have the company. That really is the one that's in control.

And they contract for our employees with some kind of staffing agency or sub contracted workforce. And they try to set up enough, create enough barriers between themselves and the staffing agencies. To be able to deny that they employ these workers directly yet at the same time, they exercise all the controls that they need to get the, get the work done the way that they want it to be done.

And so, so 

Phil: in Browning-Ferris what was the argument? Because, so did BFI have. BFI was directing 

Susan: will be. So you know how Murph's work, but maybe not everybody that's listening to this podcast does. Right? So that's basically these almost giant conveyor belts. It's awful work. It's awful 

Phil: work. It makes farm farm working look 

Susan: good.

There's these giant conveyor belts in which the recyclable materials will be kind of dumped on from your can and sorted through. And so the, the role of the Marfa workers are to pull out the material that doesn't belong on that particular sorting line. So any trash or other, like either recyclable materials that don't belong or non-recyclable materials.

And so that those conveyor belts were owned and operated by BFI. And they created the, who picked up the recycling station, BFI, the created the station where, you know, okay, this is where these employees need to stand, meaning them to be operating. You know, th they sat their hours of work, they set their arrest, they operated the line and they turned it on.

Who is the 

Phil: staffing company. So they'd go lead point, tell your guy to do this. 

Susan: Yeah. Also that there was also a lot of evidence of why, because BFI is running the facility, right. It it'd be a five 

Phil: facility with PFI product, for lack of a better term, their recyclables or their products. And so the sorters, they were joined as, but those aren't our sorters.

No, that's 

Susan: our nurse. Yeah. 

Phil: Those aren't our children. Those are lead points. Children. It's like a fraternity, Susan. 

Susan: It is, it's like a Maury Povich episode or something. Yeah. It's, it's ridiculous. When you, I think when you just speak to just any lay person off the street and you just explain the facts of the operation, everybody would get it.

Well, it's like 

Phil: Uber now though, you know? 

Susan: Yeah. So that's a different situation because what Uber is saying is none of these, these people are employed by anyone, right. They're independent contractors. They're just, nobody's employees, they're running their own business. So it's related, but a little, but a little bit different.

Yeah. Yeah, so they weren't arguing. Oh, these sorters are

Phil: their own businesses. Each person. Yeah. That 

Susan: might be next instead. They're arguing that. No, they're just, they're just employed by lead point, lead points, running the show. Cause basically lead point was in charge of setting the identity of the worker, right? 

Phil: Is it in Seattle? One of the one of the Amazon carriers who exclusively delivers for Amazon for one of the fulfillment centers somewhere.

I should know about this before I talk about it, but the employer basically on their own had to like tell Amazon, we're not, we're not going to deliver for you until you improve AB and C and it, but it's their sole customer too. And I'm like, how is it not a join them? But 

Susan: yeah, I mean, it, it, it's such a fact-based inquiry that it's sometimes it's hard to, you really have to kind of know the facts of every particular situation.

So it's like a pass or 

Phil: fail. You keep going down the flow chart of do they do this and do Deaton. 

Susan: So that's it. I think there's a real distinction between the kind of joint employer tests. So this 

Phil: was, this was also like a first impression case though, too, right? Well, there there's had to be numerous joint employer cases.

So what made this one so special? 

Susan: What made this one so special? Is that the special? Oh, that's very special. Is that the Obama board. Use this case we had argued both at, we should prevail under any standard that you applied to do the joint employer analysis, but also that the NLRB had applied a, a too restrictive test for for determining joint employment status that they were requiring showings of so much control, so much control that it was, it was beyond really what was, what was it?

Phil: No, that was part of your argument. Or that was part of the, with the board rules, 

Susan: both. So we had urged them to change the standard to overturn past standard. That's right.  and then the employer BFI appealed that to the DC circuit, but the DC circuit agreed with us upheld the Obama board standard but remanded for clarification and application.

And so we're still in that hole. 

Phil: Wait, so, and then, and then of course you had Trump appointed. I'm trying to think. How many did he, did he appoint two or three to the board? Three. Yeah, because the board is always vacant too. I mean, they always, somehow they have all these vacancies all the time too, but yeah.

So are those Senate confirmed positions too, or? Okay, 

Susan: so they and th the there we're talking 

Phil: about the national labor relations 

Susan: board, right. And that, and the terms that they are nominated for don't line up with the presidential right term. And so we still have a. Dominant. 

Phil: So basically, so it's a decision.

So talking about BFI, the Browning-Ferris this, so it's in effect or I'm sorry. It's so it's been ruled, but not in effect because it hasn't been adjudicated to the end. Well, so, okay. Yeah. 

Susan: So in terms of, on the ground for these particular employees that worked at this Murph and Milpitas, California, there is, yeah, it's still ongoing.

BFI is still refusing to, has refused to negotiate. And then when it got remanded back down to the board, that was at that point still 

Phil: there it's all still the same. Yeah. I mean, I'm 

Susan: sure there's some, yeah, but how, so then the Trump, I mean, years, years, years, years, years, years, five years. More than that. Yeah.

So the Trump board on rematch. Issued a decision saying that, that they were not going to retroactively apply the standard any standard. And so we're not going to treat BFI as a joint employer in this case. And then separately, the Trump word also promulgated rules changing the joint employer standard through its rule-making capacity.

And so that still is in effect, although I believe that legal challenges either have been filed or will be filed shortly. 

Phil: So what happens to these group of 

Susan: workers? They have never been the union has never been recognized. No, they, they were cert the elect, the, they were certified. So just back up.

Phil: So were they organized as lead point or organized as we have? 

Susan: They, we filed a petition to at naming BFI and lead point as joint employers. Okay. And the ultimately the ballots were cast and Teamsters, local 3 51 prevailed, won the election. They workers voted for union representation. The board issued a certification stating that Teamsters local three 50, is that right?

Right. A representative, but who they bargain with is, and that's insane. I refuse to bargain. Right. And so then that's what prompted the legal challenge that went to the DC circuit to the board and yeah. And the DC circuit, they refused to bargain. And so they have never bargained. 

Phil: And they basically put it into legal purgatory.

Susan: Right. And so now we, and so the case now is, again, back to the DC circuit, challenging the Trump boards. 

Phil: Right. But the Obama board. So it's never going to be retroactive. 

Susan: Well, that's, that is basically one of the issues on appeal to the DC circuit right now. Gotcha. So we're still fighting about this this many years later.

And then of course there's also the the, the rules that need to be dealt with as well. 

Phil: So what rules did the Trump board put in place? And honestly, we shouldn't, I don't know. Maybe I'm naive call it a Trump board or Obama board. You don't think we should. Is it that I don't know. It must be that cut and dry.

If that's how it's that cut and 

Susan: dry God, that's terrible. It's a, it's a political, it's very political. Yeah. But it's, that's the shorthand that we kind of use in the bids, but 

Phil: fair enough. We 

Susan: can, we can do a different term if you 

Phil: know, well, I want to be idealistic and think that they're working on to just get things, right?

Yeah, no, that's not it. 

Susan: I mean, I think that I think that 

Phil: what you're saying is they're not impartial jurors. 

Susan: I'm not gonna, I'm not gonna speak about all board members. I will say that the, I mean, clearly 

Phil: Trump, Trump appoint Trump appointees in all cases, injected a lot of politics into things that typically weren't that political.

Susan: I think that's true. I will say I'm not going to speak on my board members, but I will. Trump's appointees to the board. Oh, 

Phil: like as upon his appointment to the department of labor Scalia, junior, it was like a middle, it was like a fuck you labor, you know? Correct. And we're not going to meet with any of the labor people, you know?

Susan: Yeah. So anyway, his appointees to the labor board were I think were anti-worker anti-labor I don't think that's that controversial of a statement.

Phil: I'm just checking my phone. Sorry. Okay. Fair enough. Obama ward, or you could say, could you, could you go as far as to say pre-Trump post-Trump or although you started in 20 10, 20 11 is what you 

Susan: said. I started with this, 

Phil: with this firm, right? So you were doing labor in LA. That 

Susan: was with a law firm called Gilbert and Sackman 

Phil: segment.

And what was that like? 

Susan: It was great. I worked for a labor law firm based in Los Angeles. So we represented predominantly Los Angeles, 

Phil: Angeles. It's not like Burbank or, well, it's all kind of the greater LA area. Right? Our 

Susan: office was located in Los Angeles proper and the clients were I would say Southern California.

So we had clients that were not just in LA proper. 

Phil: What did they do? Public private. Both kind of the same as here, but down there or? 

Susan: Yeah, both private and public sector work. 

Phil: So what brought you to the bay area?

Susan: I moved up here for my now husband. And it just kind of, and the rest is history.

The rest is history. 

Phil: So he, so how did you meet him if you were down there? Was he down there 

Susan: then in law school? And so I went to law school at UCLA. Oh, okay. 

Phil: Cause I was wondering, we didn't, we didn't get the, we didn't get 

Susan: to the law school. Very disjointed. That's 

Phil: good. I can put it all back together later.

Susan: I can only take 50% responsibility for that. Yeah. Yes. I went to law school at UCLA school of law and was in the public interest program there, which was great. And he was as well. 

Phil: And he was from up 

Susan: here. Yeah. He's from up here. 

Phil: I was trying to get to the point of like, how did, so he went home. 

Susan: Yeah. I mean sort of, yeah, he worked for a small law firm based in Oakland that did affordable housing development work actually.

Funny enough. wife is the managing partner at that firm. So he works. So he worked at that firm. 

so yeah, so he went 

Phil: to school together. 

Susan: We went to school together and then we were long distance for a year and a half while he was, he was in Oakland, 

Phil: he came to Oakland and you were down there and then you started looking 

Susan: at, and that, yeah, it became untenable as you might've.

Yeah. 

Phil: Yeah. And now 10 years later, two kids 

Susan: yep. Worked out, I guess, no longer at that firm though. He now works for an environmental. Non-profit 

Phil: great. Yeah. It's good. Being around the right people too, because. we're all kind of social activists in a way, and the world's getting so Mimi me.

Susan: Interesting. What do you mean by that? I think there's less of a sense of civic responsibility or civic 

Phil: pride. Everything's just gotten more polarized, you know, it's either, it's either I care about the environment or I want to lay waste to everything and I don't care about anything, 

right. 

Susan: You know, I think it's hard to, 

Phil: yeah. Like people are more, people are more demanding. It seems like now. And they're more Selfish is that 

Susan: I think it's kind of a, I think it's hard to over-generalize because I think about the selfish people wear active wear, like, think about for this generation, these generations coming up where we have left the world for them.

Oh God, sorry. I'm sorry. Stagnant wages, broken political system con fucked environment. And, and, and I just think that too, 

Phil: what floor are we on? I'm just going 

Susan: to dive out the window. Some ways I find myself inspired by the kind of creativity and 

Phil: also by the way, one of the coolest times ever too.

Susan: Yeah. You think so? 

Phil: Yeah. They came up with a vaccine for a global pandemic in a year. 

Susan: No one can impressiveness 

Phil: and that's never the world. Kind of going to hell in a hand basket, but it's also the best time to be in, you know, to be gay or to be a, whatever, you know, the world's grown a lot and it's also gotten weird a lot, you know?

Susan: Yeah. It's hard. It's, it's so hard. I do think that when people kind of romance 

Phil: the internet, which has now turned into misinformation, I didn't see that one coming. 

Susan: I think when people romanticize the past, that's often done at the expense of the good old 

Phil: days. Yeah. 

Susan: Right. Exactly. It's Johnny sort of editing out whole chunks of the population from those quote unquote good old days.

Yeah. But I, I do think there is a kind of major reckoning in terms of kind of the way that we interact as people that, that those more social more is, are definitely Jane. And there was some still shifting things, right? 

Phil: For example this is probably going to have to pull this out too.

It used to be embarrassing to be like ignorant or racist or whatever. Now people feel free to just throw it around, you know, to express opinions that would otherwise be, you know, grossly inappropriate. 

Susan: Yeah. I think that there has been a certain amount of shamelessness  

Phil: so, and it's different because you didn't have thousands of people March on the Capitol and with this same sense of kind of entitlement or, you know, the, the, you work for me, attitude to where they broken the conch. And trashed the place, you know? 

Susan: Yeah. There's a lot 

Phil: that would have been crazy. I can imagine if they would have got ahold of like 10, 10 people, you know, either party, it would've been like full hostage negotiation thing.

Susan: It's really shocking that the investigation of that has become politicized. There's not just a fundamental, right. Even the 

Phil: political people are like, we're going to politicize this now, 

Susan: but yet that's what has happened.

Okay. It's 

Phil: crazy. Everything's so politicized now. It's insane though. I mean, how, and I am a Democrat and what's amazing is. You know, like the Bengazi in investigation and I won't argue the legitimacy of that, but that thing went on forever hearing after hearing, after hearing. And I, I don't think we've had one or two hearings on the, on January 6th.

Susan: Yeah. I think there is a, there is a kind of problem with the, where you have one side that I think is like, typically you don't try attempting to engage in some kind of bipartisanship and the other side, that's not

Phil: the problem is, is, you know, the, the, typically the thinking is, is you don't want to look back cause you start stepping on your own agenda, right? Focus on what you, you know, as far as governing goes, focus on what you want to do and not necessarily just play the politics of looking backwards. Cause then you're not doing anything.

But how we need to look backwards. I mean that Trump administration take your pick of the cabinet from Palm PEO to Betsy Devoss, to you know, Wilbur Ross cheese, The impression I have and it's fair or unfair. And I would like to think of myself as relatively, you know, fair about looking at things.

They all seem like they, I mean the level of corruption just across the board at least deserves some looking into. Right. 

Susan: Well, I think that part of the concern is 

Phil: that like I went like, how come Giuliani is not, I mean, if Giuliani was black, he would have been in prison for like two years already.

So what's next for Browning Ferris. So now it's just, is there a date in the future or is it just sit there until, I mean, Is it mirrors, the legal process seemed like it runs a little slow.

Some 

Susan: it's not just you, it's not just me. It's not just you. Yeah. I mean, oftentimes with these, you know, cases, that's set precedent. They end up being litigated for years and years and years. And the, the true benefit is for those who come 

Phil: after. So how does this N H so Browning-Ferris, how does Browning-Ferris end?

So right now, where is it at? It's back in the DC circuit back in the DC circuit, remanded back for what? 

Susan: Well, it's not, 

Phil: I know I'm not a lawyer. You tell me the lawyer stuff. 

Susan: So originally did DC circuit remanded it back to the labor board for clarification and application. Got it. That's when the Trump board got its hands on it and issued a decision trying to kill it.

Yes. And so that decision is now on appeal. Got it. 

Phil: Did they try to kill it just by making it totally ineffective or did they try to just get it thrown out? 

Susan: Essentially w what they said was that there's, we're not going to apply this quote unquote, retroactively to the parties involved in this case.

That would be unfair. Yeah. And so then, so that means, that would mean that there's no 

Phil: bargaining. That sounds like 

Susan: half a win though. Well, no, because remember that board also passed that joint employer rule. So going forward, remember that? 

Phil: No, I don't remember. So tell me, so, so, so is that rule specifically to, to, to hobble frowning 

Susan: fairs?

So what the Trump board did originally was they try to overrule brownie, then we're 

Phil: going to back up a little bit. So Browning Browning-Ferris, the decision is made by the NLRB. Then it goes to court. Right to the DC circuit, the DC circuit, they have held the ruling, correct? Trump appoints some people do the board, correct.

The issue, a 

Susan: rule. That's what I'm saying before they did that before they did that, they tried to overrule Browning Ferris, but there was a little bit of a hiccup because one of the people that Trump appointed to the NLRB was a former partner at littler Mendelson, William Emmanuel, and let learn Mandarin Mendelson is the law firm representing the staffing company.

In Browning Ferris and the Browning-Ferris case. And so he was conflicted out from ruling on brown. So he 

Phil: was like a joint lawyer for the joint employer. 

Susan: So he was not allowed to rule in Browning Ferris. So then there was no majority to overrule Browning Ferris, but that's what the labor that's amazing.

Well, when the labor board did, was try to overrule brownie and Ferris through a different case, but then it got thrown out because it was very obvious. 

Phil: Miss that. So wait a minute. So one of the attorneys arguing that Browning-Ferris got appointed to the board? 

Susan: No, not he was not that his firm is 

Phil: correct.

Right. But that created the conflict, 

Susan: correct? For his participation in Browning Ferris, but then what the labor board tried to do. Overruled brownie Ferris through a different case, but it was essentially what the there was an inspector general investigation into the, into the situation and they realized, wow.

They saw, and, and there were, there were a whole emails demonstrating that basically the board had sort of merged these two cases and tried to just use this other cases, a vehicle for overwhelming Browning-Ferris and having this, you know, kind of conflicted, right. Member participate. And anyway, so they, they ended up vacating that decision.

It was high brand case that they, that they originally issued.  arguing what the, in the high brand case. 

Phil: Well, so in other words, who's, who's defending the, what we would call the positive ruling. Well, 

Susan: so I am continuing to represent teams was local three 50. 

Phil: Do you stay involved? Right. So it still comes back 

Susan: to the parties.

The party is yes. And the labor, the labor board itself is also a party at the DC circuit level. Right. So it's the labor board. So yeah. 

Phil: So, so you've got the board arguing for it in some cases and then against it in the next correct term. 

Susan: Yeah. So

enough to make your heads. I know. And 

Phil: this started when you were, how long had you been at the firm here? 

Susan: I, well, you know, I want to pull, I can't remember when we filed the petition and it's like 20 13, 20 14, something like that. Yeah. I mean, 

Phil: it's pretty early in your career, right? 

Susan: I don't know. It's kind of subjective, but 

Phil: I mean, in baseball terms, he would have been a seasonal veteran by then.

Exactly. So how does it, how does it end. 

Susan: How does it end? Well, what we need to do is get a joint employer standard that the NLRB applies. That makes sense, right? We need, we need a common sense application here because it affects real, real life people, workers wanting to try to unionize and bargain with the company that ultimately controls their employment, not mentioning staffing company that can actually grant vacations or wage increases or whatever.

Phil: And that's a classic talking about farm workers like Taylor farms. Were you involved in Taylor farms at all? Or was that somebody else around here 

Susan: peripherally? That was not. Yeah, but that's, I 

Phil: mean, the you know, the farm workers, typically these employment relationships that, that structure exists everywhere to where these the growers and the cantors say, you know, these aren't our employees, they're all, they're all through staffing agencies.

Yeah. And th and they're their only client, you know? 

Susan: Right. And so there, okay. So there are so many different you know, legal obligations on employers. So this BFI ruling is about one particular statute, the national labor relations act. 

Phil: We're going over the top of everybody though. So why, why would I I'm BFI, why would I want a staffing agency dealing with this employee, these employees and not myself?

Susan: Well, I don't know what motivated it in this particular case. It could been to avoid unionization. It could have been to avoid pain dealing with you know, potential litigation over discrimination or to DLT quote unquote liability in general. So yeah, the structure, the structure of the relationship 

Phil: are different than independent than independent contractors.

The incentives are different. 

Susan: The structure of the relationship between BFI and the staffing agency was, was what they call a cost like essentially a cost plus pass through contract, where they would pay X amount of dollars for each man hour of work. And that included the sort of percentage markup from minimum wage, that lead point was going to park pocket.

Right. And then so then BFI says, well, lead point, you know, you can negotiate your wages, we'll lead point, right. But we're, you know, we're but ultimately they're set, we're paying this much per man hour exit. Exactly. So they, so anyway, BFI by creating this relationship this way is able to exercise all the control.

Ultimately it wants, because remember it's running these machines, it shuts down the machines when it wants to, it runs them when it wants to, it decides when someone works overtime, it decides how many people stand, where, and when. Trains these workers on how to pick things or not pick things. So it's running its business exactly the way it wants to, but then without that lie, what you termed liability, right?

Which could be the obligation to bargain over wages. It could be the obligation to pay workers comp, you 

Phil: know, they throw a big barrier up because now you've got, in this case, the Teamsters local you'd much rather bargain with BFI than you would the staffing company. Cause you can't really get anywhere with the staffing company because at the end of the day, the person in control, 

Susan: the staffing company literally has no control over anything.

I mean, what could you really bargain? So, yeah, it's kind of a joke. It's, it's such an extreme and obvious case. In, in this, in this particular instance it's unfortunate that net we're now seven plus years down the line and these workers never. I've never been able to bargain over well, in 

Phil: that, in that units probably looks a lot different now obviously than it did then, you know?

Oh, 

Susan: of course. Especially cause it's as temporary staffing agency that doesn't pay very much. 

Phil: Well, the other crazy thing too, is like Tesla does a lot of this. Right. And and they, they hire these people for contracted periods of time, right. Six months or whatever. How does 

Susan: that work? Well, oftentimes you will actually see those kinds of limitation terms in these contracts between a company and the staffing agency, because they don't, they, if you have that kind of turnover, it makes it a lot harder.

Phil: Well, Tesla, just to be clear, my impression of Tesla is they're a horrible employer. I mean, 

Susan: I mean, certainly they have engaged in union investing, 

Phil: union busting, and I think they've got one of the worst workman's comp records in the state too. Is that right? And they're just aggressively anti-union 

That's true. Yeah. So they use all these joint employer kind of mechanisms to help prevent unionization. I mean, so how does it end, I'll ask and how does it end 

Susan: was what I was saying is that what we need is some kind of common sense application of this joint employer standard, right? That matches with reality, what we actually see in the ground.

How do we get them 

Phil: making the 

Susan: rules at this point, when we need to either undo the Trump board rule and, or get a new board with a Biden appointed majority to issue a new, a new joint employer rule. And then, you know, the third option. Well, yeah, it would have to be one of those two options. Now that the, the rule has been promulgated.

You can't undo it through adjudication case adjudicate. 

Phil: Okay. So the rule stands right now that 

Susan: we're all stands right now. I don't have a gun. I don't have a gun. Yep. And the, and just to add insult to injury, that the standard that they promulgated and by they, I mean, the, the Trump ward promulgated in this rulemaking is even more restrictive than what BFI had overturned the real stick in the eye.

Phil: So it's the classic Trump. Fuck you. Yeah, it's good. We'll get a little payback on the, you know. Yeah. 

Susan: And I, I think that we did not do nothing. We, we, as in, you know, I don't know what you would call labor or labor supporting allies do enough to make it clear how anti-worker anti working class Trump's agenda was 

Phil: what's the appeal to, to a lot of people, but I always end up talking about Trump, but Trump's appeals racism.

I mean, that's really the end of the line, whether it's the, so a, I think a, a, I don't want to be over, I don't want to over-generalize, but if you're a white male of a middle to lower middle-class and you have, you know, anxiety about you know, somebody taking your job or your job being offshored or exported.

I think they're more than willing to a percentage of people. And this is certainly probably the exception, not the rule, but I think there's a percentage of people that are eager to believe these other things, basically, because they don't like the look or the color of the person working next to them.

And they're, they're, you know, they don't want their neighborhoods to change. They don't want them to be integrated. I think they just are more comfortable being racist. And so they'll apply these other policies thinking that, you know, they're being, they're, they're using it as a, as a cover for their racism.

Susan: Yeah. I mean, I feel uncomfortable generalizing about kind of a large swath of the voting, but I, I, what I will agree with you about is there's no doubt. That, that Trump's 

Phil: Trump, it wasn't, it wasn't Latino and black women's storm in the Capitol on January 6th. You know, 

Susan: there's no doubt that he used racist rhetoric 

I mean, I do think that there is a feeling of loss of standing of the the country sort of in the, in the world, I guess what I, what I, a loss of standing a loss of ascendancy and I guess. Where I see the problem is, is, is, is really weird. The loss of union density and the stagnation of wages. And I see that as kind of like an underlying root cause here to make people feel so a B and sort of privatization of all kinds of public functions.

I think that's where people have, have been left behind and it felt left behind and it, but to me, the prescription is not. For the, the cure for that is the exact opposite of, of Trump's policies or the Republican. I mean, like you said, I'm kind of ready to move on past, even mentioning Donald Trump, I'm kind of over it.

And so, but I would say that the prescription is not the Republican policy agenda in my, in my opinion, 

Phil: Trumpism. So it's got it's cause you don't want to give him any energy by saying, saying his name. Right. But he has rewritten the Republican party he's he is re he's altered their DNA. 

Susan: I think what Trump does, what his special talent is besides grabbing eyeballs by saying outrageous stupid shit is his talent is exposing the rod exposing.

He's talented at sort of getting people to sleep with him, metaphorically, you know what I'm saying? And, and to kind of get people to do stuff that they never thought they 

Phil: would do energy he can generate. And it's, I mean, as a, as a union official, right? This is, that's the kind of energy we've w I say we've, or at least I have my whole career tried to generate with people to get him passionate about things that affect their life, you know, and his ability to get to motivate people.

Like that's crazy. I don't know. But again, it seems to be, you know, it's, it's, he creates that by tapping into the worst, you know, the worst angels of people and getting them that seems to animate them as opposed to, you know, them wanting to go out and do. Like everything, everything that the Republican Trumpist movement is, is to, you know, it's all about like stopping something or killing something or preventing something which may or may not even be real.

Susan: Yeah. I think that there is an emotional connection. I don't think that any of us are above it. I think ultimately that that tends to carry the day emotion and emotionally emotional connection and stories. And that in fact, policy positions are the more malleable, less, less core to people's identity than I think any of us thought six years ago.

Phil: And who knew we relied so much on the norms. Whoops. Whoops. 

Susan: All right. Want to write some of that stuff down guys? 

Phil: Oh my God. And just the, just the basic one of like, you know, being an ex president is you don't really speak about things that you're no longer a part of that's that's out the window. Add that to the list of murdered norms.

Susan: should have written more stuff 

Phil: down. Know. So you guys moved. Terror boating. 

Susan: Yeah, we moved across the street. We're still in downtown Oakland, still on this little strip of old Oakland where the farmer's market is on Fridays. It's quite nice. 

Phil: What do you call the I hope, I hope they don't the COVID when you put your restaurant, you put tables in the parking spaces.

What do they call there's a name for that? Like parklets or something parklets or something? Yeah. I hope they stay there forever. 

Susan: Yeah. There's a bunch of slow streets are closed streets and in Oakland and San Francisco. And I agree with you. I think it's great. Yeah. I hope they 

Phil: do stay well, Susan. Thank you.

Thank 

Susan: you. This is great.  I always enjoy talking to you. 

Susan Garea Profile Photo

Susan Garea

Attorney

Northwestern University, B.A., African-American Studies; Economics (2001) University of California at Los Angeles, School of Law, J.D. (2008), graduate of David J. Epstein Program in Public Interest Law and Policy and with a concentration in Critical Race Studies

Member, California State Bar (2008); U.S. District Courts for the Northern, Eastern, Southern and Central Districts of California; United State Court of Appeal for the Ninth Circuit and D.C. Circuit; State Bar Labor and Employment Section.

Member, Board of Directors, AFL-CIO Lawyers Coordinating Committee.
Contributing Author to Working for Justice: The L.A. Model of Organizing and Advocacy (Cornell University Press).

Previous work experience includes Associate attorney, Gilbert & Sackman (2008-2010) and elementary school teacher (2001-2005).