Susan Garea - Beeson Tayer Bodine

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[00:00:29] I'm thinking of taking a J&J just for fun.

[00:00:32] Is that on the table?

[00:00:35] I don't know if you can do that. Can you do that?

[00:00:38] I don't know.

[00:00:40] Okay, should we talk about it?

[00:00:42] Music

[00:00:46] Yeah, this is your deal.

[00:00:51] Oh, okay. Well, no, that's, you know, you got to warm up a little bit.

[00:00:54] Right. Yeah.

[00:00:55] Get used to things.

[00:00:56] Yeah, I mean you tell me do I sound okay?

[00:00:58] You sound great.

[00:00:59] Okay, let's do that.

[00:01:00] And I lured you in with talking about Browning Ferris, but really, you know, we just talk.

[00:01:04] Where do you want to start then?

[00:01:06] Were you from New Jersey? Like born in New Jersey?

[00:01:10] I was born in Virginia, moved to New Jersey when I was two.

[00:01:14] So I have no actual memories of life in Virginia.

[00:01:17] So it's New Jersey.

[00:01:19] It's all where you identify with.

[00:01:21] By the way, Susan Greya, shareholder of Beeson Taylor Baudin.

[00:01:25] Taira Baudin.

[00:01:27] Baudin, very prominent firm in Oakland, California, been doing labor law forever.

[00:01:31] So New Jersey High School, what was high school like in New Jersey?

[00:01:35] Is it the same as around here?

[00:01:37] California.

[00:01:38] I haven't been to high school in California, so it's kind of hard for me to judge.

[00:01:42] But well, the architecture is quite different.

[00:01:45] It's older.

[00:01:46] It's older and they're buildings that have inside hallways.

[00:01:51] You know how they build all the...

[00:01:53] Inside hallways? You know, that's funny.

[00:01:56] I didn't even think of it.

[00:01:58] Yeah, because there's snow and cold and rain and all that, which here we don't really get any rain.

[00:02:05] Yeah, we could use some rain.

[00:02:07] Out here, yeah, the school architecture is very different.

[00:02:10] That's one thing I've noticed.

[00:02:12] Well, your kids are eventually going to go to school around here, right?

[00:02:15] I mean, I do hope they go to high school.

[00:02:17] Way to aim high.

[00:02:19] That's it?

[00:02:20] I think it's mandatory.

[00:02:21] I know.

[00:02:22] Well, so then where did you go to college?

[00:02:24] I went to Northwestern.

[00:02:26] Because what I'm trying to get at is...

[00:02:28] Which is a school that's located...

[00:02:31] I feel like I should know this.

[00:02:33] Outside of Chicago in like that first northern suburb of Evanston, Illinois.

[00:02:37] Right.

[00:02:38] It's part of the Big Ten, but it's kind of like fake Big Ten because the size...

[00:02:43] Is it the Big Ten still or what is it?

[00:02:44] Oh, I don't even know.

[00:02:46] I know.

[00:02:47] I don't think it is.

[00:02:48] Are you a sports fan?

[00:02:49] I wouldn't presume to call myself a fan.

[00:02:52] I will say here, I moved up to the Bay Area in 2010 right as the Giants were about to win that season where they won their first World Series.

[00:03:03] So you got swept up on the way.

[00:03:05] So I got swept up and then it was like every other year for those three.

[00:03:07] Right.

[00:03:08] And that was fun.

[00:03:09] We'd go watch the games at the bars and it was a lot of fun.

[00:03:12] So I guess I was like a fan for those...

[00:03:15] Well, what about in college?

[00:03:16] Maybe six years.

[00:03:17] What did you do other than study or did you just study?

[00:03:20] What did I do in college other than study?

[00:03:22] So you did your BA in Northwestern.

[00:03:26] Where'd you go to law school?

[00:03:27] Yes.

[00:03:28] I'm assuming you went to law school.

[00:03:29] I did go to law school.

[00:03:31] It is possible in California to practice law without going to law school.

[00:03:35] It's one of the few...

[00:03:36] Seriously?

[00:03:37] That's what Kim Kardashian is doing.

[00:03:38] Don't you ever see her Insta?

[00:03:39] Is that really a thing?

[00:03:40] Yes.

[00:03:41] Yeah, she posts her pictures of herself like studying for the bar or bikini.

[00:03:45] Oh no.

[00:03:46] I actually think it's great.

[00:03:47] You know, she kind of...

[00:03:48] You remember she got all that publicity around the like prisoner release work that she was doing?

[00:03:54] Right.

[00:03:55] So you can in California practice law without going to law school.

[00:04:00] You have to apprentice under someone and then...

[00:04:03] So you have to be credentialed and pass the bar and...

[00:04:07] Yes.

[00:04:08] You have to pass the bar.

[00:04:09] So it's not as easy as like marrying somebody in California?

[00:04:12] No.

[00:04:13] Do you know about this?

[00:04:15] You can just pay...

[00:04:16] You can get a permit to marry people.

[00:04:18] To be a justice to the peace.

[00:04:20] I do.

[00:04:21] Yeah, yeah.

[00:04:22] That's what we did for our wedding.

[00:04:23] My husband and I had friends marry us.

[00:04:26] Oh nice.

[00:04:27] Yeah, it was great.

[00:04:28] They did a good job.

[00:04:29] And my totally unbiased opinion.

[00:04:30] So where'd you go to school?

[00:04:32] Northwestern?

[00:04:33] For undergrad.

[00:04:34] Undergrad.

[00:04:35] And then I taught elementary school.

[00:04:37] Get out.

[00:04:38] In Southern California for four years.

[00:04:40] Wait, what?

[00:04:41] Yeah, at this little carve out school district called Linwood Unified School District which

[00:04:46] had kind of an interesting history because it's kind of right smack dab in the middle

[00:04:50] of Los Angeles.

[00:04:51] Oh I feel like I know this.

[00:04:52] We might have talked about this before.

[00:04:54] Yeah.

[00:04:55] And they...

[00:04:56] There was a bunch of various school districts that seceded basically to for like white

[00:05:00] flight purposes.

[00:05:01] And so the school district used to be like...

[00:05:03] It used to be like a very white community.

[00:05:06] And then it kind of changed over and became predominantly black.

[00:05:10] And then it changed over again by the time I got there as a teacher it was predominantly

[00:05:15] Latino.

[00:05:16] So it was an interesting...

[00:05:17] It was like a very interesting place.

[00:05:21] Terribly run school district.

[00:05:23] School districts are hard.

[00:05:24] Unfortunately.

[00:05:25] It's hard.

[00:05:26] It's very hard but I mean...

[00:05:27] Right.

[00:05:28] They would have done better.

[00:05:29] But put the kids first and it should work.

[00:05:31] Yeah.

[00:05:32] But like most things with people it's territorial and you know...

[00:05:39] It's very interesting.

[00:05:40] I've thought a lot about the structure of school district governance given this past

[00:05:46] year and how poorly so many school districts performed in my humble opinion.

[00:05:54] And yeah.

[00:05:55] So let's do that because we both have kids.

[00:05:58] We talk about our kids.

[00:05:59] Distance learning was something nobody had on their bingo card for 2020 when the whole

[00:06:05] pandemic started.

[00:06:06] Yeah.

[00:06:07] And it was rough.

[00:06:09] And you were doing kindergarten?

[00:06:11] Yeah.

[00:06:12] So I have two kids.

[00:06:14] My youngest is still in preschool.

[00:06:17] So they returned to school in person in July because it is just private, right?

[00:06:24] And then my daughter was in kindergarten when they went in March of 2020.

[00:06:30] So she now finished first grade.

[00:06:32] So she basically got three quarters of the year of kindergarten in person and then distance

[00:06:38] ever since.

[00:06:39] But I'm really excited about her returning to school in person for second grade.

[00:06:43] Just getting out in the sun.

[00:06:44] I know.

[00:06:45] Well, so Browning Ferris which is kind of what brings us here.

[00:06:50] How did that begin?

[00:06:51] So that famous infamous joint employer decision which has kind of had nine lives, right?

[00:06:59] Basically nine lives.

[00:07:00] I mean to tell the procedural history of this case would take 20 minutes.

[00:07:03] Yeah, that's good.

[00:07:04] I got nothing else going on.

[00:07:06] That would be really exciting to talk about.

[00:07:09] For everyone, I'm sure.

[00:07:10] Not dry at all.

[00:07:11] Maybe for a civil procedure class or so.

[00:07:15] But that was solid waste in San Francisco.

[00:07:17] Teamsters local 350, right?

[00:07:20] It was Milpitas down the peninsula.

[00:07:22] But yeah, Teamsters local 350 is the client, the union that organized these recycle workers.

[00:07:31] Kind of lowest on the totem pole when it comes to the solid waste industry.

[00:07:35] They're the ones sifting through.

[00:07:37] I've done solid waste.

[00:07:39] They're sifting through.

[00:07:40] They work in the MERV.

[00:07:41] Yeah, exactly.

[00:07:42] Or the MERV.

[00:07:43] MERV.

[00:07:44] Yeah.

[00:07:45] It's hard work and it's unpleasant work.

[00:07:48] Which is a material recycle facility.

[00:07:50] That's right.

[00:07:51] That's why MERV makes more sense than the MERV.

[00:07:54] I know.

[00:07:55] I slang it.

[00:07:56] Yeah, so Teamsters local 350 organized these guys and filed for an union election with

[00:08:03] the labor board.

[00:08:05] And the company which is Browning Ferris, BFI, said, oh, we're not the employer.

[00:08:13] Those aren't our employees.

[00:08:16] They're employed by the staffing agency that we use.

[00:08:19] So they were staffing agency, right?

[00:08:21] Yeah, exactly.

[00:08:22] That's like classic farm worker stuff too.

[00:08:25] Very classic farm worker stuff.

[00:08:27] So this was, yeah, the name of the staffing company was Leadpoint and they were the

[00:08:33] ones that issued the paychecks and it's all like the sheen of employment through

[00:08:38] the staffing agency.

[00:08:40] And Browning Ferris and we're not even, not only.

[00:08:44] And this is before AB5 and all of that, right?

[00:08:49] Before AB5 passed, I mean, all the time, the concept of joint employment exists.

[00:08:57] Back up and cover the concept of joint employment, which to me seems a legal vehicle that companies

[00:09:03] have used to avoid their responsibilities.

[00:09:06] There are a couple of different ways that you might have a joint employment setup.

[00:09:12] But the way that we saw it in Browning Ferris, and I think the way that we most typically

[00:09:16] see it is where you have the company that really is the one that's in control and

[00:09:22] they contract for employees with some kind of staffing agency or subcontracted workforce.

[00:09:30] And they try to set up enough, create enough barriers between themselves and the

[00:09:35] staffing agency to be able to deny that they employ these workers directly yet.

[00:09:42] At the same time, they exercise all the control that they need to get the work done the way

[00:09:48] that they want it to be done.

[00:09:50] And so...

[00:09:51] So in Browning Ferris, what was the argument?

[00:09:53] Because so did BFI have, BFI was directing?

[00:09:58] Well, so you know how MRFs work, but maybe not everybody that's listening to

[00:10:02] this podcast does.

[00:10:03] Right, right, right.

[00:10:04] So that's basically these almost giant conveyor belts.

[00:10:08] It's awful work.

[00:10:09] It's awful work.

[00:10:10] It makes farm working look good.

[00:10:12] So there's these giant conveyor belts in which the recyclable materials will be kind

[00:10:17] of dumped on...

[00:10:18] From your can, yeah.

[00:10:19] ...from your can and sorted through.

[00:10:21] And so the role of the MRF workers are to pull out the material that doesn't

[00:10:26] belong on that particular sorting line.

[00:10:29] So any trash or other like either recyclable materials that don't belong or non-recyclable

[00:10:34] materials.

[00:10:36] And so those conveyor belts were owned and operated by BFI and they created the...

[00:10:44] Who picked up the recyclable?

[00:10:45] The station, BFI.

[00:10:47] They created the station where, you know, okay, this is where these employees need

[00:10:51] to stand, meaning them to be operating.

[00:10:54] They set their hours of work, they set their rest...

[00:10:57] They operated the line, they turned it on and turned it off.

[00:10:59] Who is the staffing company?

[00:11:01] Lead point.

[00:11:02] So they go lead point, tell your guy to do this.

[00:11:04] Yeah, also that.

[00:11:05] There was also a lot of evidence of...

[00:11:08] Because BFI's running the facility, right?

[00:11:10] The BFI facility was BFI product for lack of a better term.

[00:11:14] The recyclables are their product.

[00:11:16] Correct.

[00:11:17] And so the sorters, they were trying to say, but those aren't our sorters.

[00:11:20] Those aren't our sorters, yeah.

[00:11:22] Lead point.

[00:11:23] Those aren't our children.

[00:11:24] Those are lead points children.

[00:11:26] It's like a paternity suit.

[00:11:27] I mean, it's really ridiculous.

[00:11:28] It is.

[00:11:28] It's like a Mori Povic episode or something.

[00:11:31] Yeah.

[00:11:31] It's ridiculous when you...

[00:11:33] I think when you just speak to just any layperson off the street

[00:11:38] and you just explain the facts of the operation, everybody would get it.

[00:11:43] Well, it's like Uber now though, you know.

[00:11:46] Yeah, so that's a different situation because what Uber is saying

[00:11:49] is these people aren't employed by anyone.

[00:11:52] They're independent contractors.

[00:11:54] They're just nobody's employees.

[00:11:55] They're running their own business.

[00:11:58] So it's related, but a little bit different.

[00:12:01] Yeah.

[00:12:01] Yeah.

[00:12:02] Yeah.

[00:12:03] So they weren't arguing, oh, these sorters are...

[00:12:04] They're own businesses, each person, yeah.

[00:12:07] Right.

[00:12:08] They didn't argue that.

[00:12:09] That might be next.

[00:12:09] Yeah, that might be next.

[00:12:11] Instead, they argued that no, they're just employed by lead point,

[00:12:14] lead points running the show because basically lead point was

[00:12:18] in charge of setting the identity of the worker, right?

[00:12:21] Who was it?

[00:12:21] In Seattle, one of the Amazon carriers who exclusively delivers

[00:12:28] for Amazon for one of the fulfillment centers somewhere.

[00:12:30] I should know about this before I talk about it.

[00:12:32] But the employer basically on their own had to tell Amazon,

[00:12:39] we're not going to deliver for you until you improve A, B and C.

[00:12:44] But they're sole customer too and I'm like, how is it not a joint employer?

[00:12:48] Yeah, I mean it's such a fact-based inquiry that sometimes it's hard to...

[00:12:56] You really have to know the facts of every particular situation.

[00:13:00] It's one of those multi-factor.

[00:13:00] So it's like a pass or fail.

[00:13:01] You keep going down the flowchart of do they do this and do...

[00:13:06] I think there's a real distinction between the joint employer test.

[00:13:11] Well, this was also like a first impression case though too, right?

[00:13:17] Well, there's had to be numerous joint employer cases.

[00:13:20] So what made this one so special?

[00:13:22] What made this one so special is that...

[00:13:24] Because it's special.

[00:13:26] It's very special.

[00:13:27] Is that the Obama board used this case.

[00:13:30] We had argued both that we should prevail under any standard that you apply to do

[00:13:36] the joint employer analysis but also that the NLRB had applied a too restrictive test

[00:13:42] for determining joint employment status that they were requiring

[00:13:47] showings of so much control, so much control that it was beyond really what was necessary.

[00:13:53] Now that was part of your argument or that was part of what the board ruled?

[00:13:56] Both.

[00:13:56] So we had urged them to change the standard to overturn past...

[00:14:00] So change the standard.

[00:14:01] That's right.

[00:14:02] And then the employer BFI appealed that to the DC circuit but the DC circuit

[00:14:06] agreed with us, upheld the Obama board standard but remanded for clarification

[00:14:11] and application.

[00:14:12] And so we're still in that whole process.

[00:14:15] Wait, so and then of course you had Trump appointed...

[00:14:20] I'm trying to think how many did he appoint two or three to the board?

[00:14:24] Three, yeah.

[00:14:25] Because the board's always vacant.

[00:14:27] I mean they always...

[00:14:28] Somehow they have all these vacancies all the time too.

[00:14:31] But yeah, so...

[00:14:32] Are those Senate confirmed positions too or...?

[00:14:35] Correct.

[00:14:35] Okay.

[00:14:36] So they and the...

[00:14:38] We're talking about the National Labor Relations Board.

[00:14:41] Right.

[00:14:41] And the terms that they are nominated for don't line up with the presidential term.

[00:14:48] And so we still have a dominant board right now.

[00:14:54] So basically...

[00:14:54] So it's a decision, so talking about BFI, the Browning Ferris,

[00:14:58] so it's in effect or I'm sorry, it's been ruled but not in effect

[00:15:03] because it hasn't been adjudicated to the end?

[00:15:06] Well...

[00:15:06] Where does it end?

[00:15:08] Where does it go from...?

[00:15:09] Yeah.

[00:15:09] Where is it at and where does it go?

[00:15:10] So in terms of on the ground for these particular employees that worked at this

[00:15:14] Murph in Milpitas, California...

[00:15:14] Well, for on 10 purposes.

[00:15:16] There is...

[00:15:16] Yeah.

[00:15:17] It's still ongoing.

[00:15:18] BFI is still refusing to...

[00:15:20] Has refused to negotiate and then when it got remanded back down

[00:15:24] to the board that was a...

[00:15:26] So lead point's still there, it's all still the same?

[00:15:28] Yeah, I mean I'm sure there's been some...

[00:15:29] For the most part but yeah.

[00:15:31] But how long has it been?

[00:15:31] So then the Trump...

[00:15:32] I mean years, years, years, years, years.

[00:15:34] Four years, five years?

[00:15:35] More than that, yeah.

[00:15:37] So the Trump board on remand issued a decision saying that they were not going to retroactively

[00:15:44] apply the standard, any standard and so we're not gonna treat BFI as a joint employer in this case.

[00:15:52] And then separately the Trump board also promulgated rules changing the joint employer standard

[00:15:59] through its rulemaking capacity.

[00:16:02] Right.

[00:16:02] And so that still is in effect although I believe that legal challenges either have been filed or

[00:16:09] will be filed shortly.

[00:16:11] So what happens to these group of workers?

[00:16:16] They have never been...

[00:16:17] I'm certified.

[00:16:18] The union has never been recognized.

[00:16:19] Yeah.

[00:16:20] No, they were certified.

[00:16:23] So just a backup.

[00:16:25] Backup.

[00:16:26] So were they organized as lead point or organized as BFI?

[00:16:30] We filed a petition to naming BFI and lead point as joint employers.

[00:16:37] And ultimately the ballots were cast and Teamsters Local 350 prevailed on the election.

[00:16:45] The workers voted for union representation.

[00:16:48] The board issued a certification stating that Teamsters Local 350 is the exclusive representative.

[00:16:54] But who they bargain with is insane.

[00:16:56] And then BFI refused to bargain.

[00:16:59] Right.

[00:16:59] And so then that's what prompted the legal challenge that went to the DC Circuit or the one to the

[00:17:05] board.

[00:17:06] Yeah, in the DC Circuit.

[00:17:07] They refused to bargain and so they have never bargained.

[00:17:10] Right.

[00:17:11] And they basically put it into legal purgatory.

[00:17:14] Right.

[00:17:15] And so now we...

[00:17:16] And so the case now is again back to the DC Circuit challenging the Trump board's decision.

[00:17:23] Right.

[00:17:23] But the Obama board, so it's never going to be retroactive.

[00:17:27] Well, that is basically one of the issues on appeal to the DC Circuit right now.

[00:17:32] Gotcha.

[00:17:32] So we're still fighting about this this many years later.

[00:17:35] And then of course there's also the rules that need to be dealt with as well.

[00:17:40] So what rules did the Trump board put in place?

[00:17:43] And honestly we shouldn't...

[00:17:45] I don't know maybe I'm naive call it a Trump board or Obama board.

[00:17:49] You don't think we should?

[00:17:50] Is it that?

[00:17:50] I don't know.

[00:17:51] It must be that cut and dry if that's how...

[00:17:53] It's that cut and dry.

[00:17:55] God, that's terrible.

[00:17:56] It's a political...

[00:17:57] It's very political.

[00:17:58] Yeah, the...

[00:18:00] But it's...

[00:18:00] That's the shorthand that we kind of use in the bids but...

[00:18:03] Fair enough.

[00:18:04] We can...

[00:18:04] I can do that.

[00:18:05] We can do a different term if you feel more comfortable.

[00:18:08] Well, I want to be idealistic and think that they're working on...

[00:18:11] To just get things right.

[00:18:14] Yeah.

[00:18:14] No, that's not it.

[00:18:16] I mean, I think that...

[00:18:17] I think that...

[00:18:19] What you're saying is they're not impartial jurors.

[00:18:22] I'm not gonna...

[00:18:24] I'm not gonna speak about all board members.

[00:18:26] I will say that the...

[00:18:28] I mean, clearly Trump appointees in all cases

[00:18:34] injected a lot of politics into things that typically weren't that political.

[00:18:38] I think that's true.

[00:18:39] I will say I'm not gonna speak on all board members,

[00:18:43] but I will say that Trump's appointees to the board are...

[00:18:48] Like his appointment to the department of labor,

[00:18:50] Scalia Jr., was like a middle...

[00:18:53] was like a fuck you labor, you know?

[00:18:55] Correct.

[00:18:56] And we're not gonna meet with any of the labor people, you know?

[00:18:59] Yeah.

[00:19:01] So anyway, his appointees to the labor board were...

[00:19:03] I think...

[00:19:05] were anti-worker, anti-labor.

[00:19:07] I don't think that's that controversial of a statement.

[00:19:11] I'm just checking my phone.

[00:19:12] Sorry.

[00:19:13] Okay.

[00:19:14] Fair enough.

[00:19:15] Obama Ward...

[00:19:17] Or you could say...

[00:19:17] Could you go as far as to say pre-Trump, post-Trump?

[00:19:20] Or although you started in 2010, 2011 is what you said?

[00:19:26] I started with this firm in 2010.

[00:19:28] Right.

[00:19:28] So you were doing labor in LA.

[00:19:29] Who was that with?

[00:19:31] That was with a law firm called Gilbert and Sackman.

[00:19:34] Gilbert and Sackman.

[00:19:35] And what was that like?

[00:19:37] It was great.

[00:19:38] I worked for a labor law firm based in Los Angeles,

[00:19:41] so we represented predominantly Los Angeles.

[00:19:44] It's great Los Angeles.

[00:19:45] It's not like Burbank or...

[00:19:47] Well, it's all kind of the greater LA area, right?

[00:19:50] Our office was located in Los Angeles proper,

[00:19:54] and the clients were, I would say Southern California.

[00:19:57] Gotcha.

[00:19:58] So yeah, we had clients that were not just in LA proper.

[00:20:01] And what did they do?

[00:20:02] Public, private, both kind of the same as here,

[00:20:05] but down there or...?

[00:20:07] Yeah, both private and public sector work.

[00:20:10] So what brought you to the Bay Area?

[00:20:12] I moved up here for my now husband,

[00:20:14] and it's just kind of...

[00:20:16] In the rest of history?

[00:20:17] In the rest of history.

[00:20:18] So how did you meet him?

[00:20:20] If you're down there, was he down there?

[00:20:23] We met in law school.

[00:20:24] So I went to law school at UCLA.

[00:20:27] Oh, okay, because I was...

[00:20:28] Yeah, we didn't get to the law school part.

[00:20:30] This is a very disjointed interview.

[00:20:33] That's good.

[00:20:33] I can put it all back together later.

[00:20:35] I can only take 50% responsibility for that.

[00:20:38] Yes, I went to law school at UCLA School of Law

[00:20:41] and was in the public interest program there,

[00:20:43] which was great.

[00:20:45] And he was as well.

[00:20:48] And he was from up here?

[00:20:50] Yeah, he's from up here.

[00:20:51] Oh, okay.

[00:20:51] I was trying to get to the point of like how did...

[00:20:54] So he went home.

[00:20:56] Yeah, I mean sort of.

[00:20:58] Yeah, he worked for a small law firm based in Oakland

[00:21:03] that did affordable housing development work.

[00:21:06] Actually, funny enough,

[00:21:08] Jeff's wife is the managing partner at that firm.

[00:21:11] So he worked at that firm.

[00:21:15] So yeah, so he...

[00:21:16] So you went to school together.

[00:21:17] You're down there.

[00:21:18] We went to school together,

[00:21:19] and then we were long distance for a year and a half.

[00:21:23] Oh.

[00:21:23] Well, he was back here.

[00:21:24] He was in Oakland.

[00:21:25] He came to Oakland.

[00:21:26] You were down there.

[00:21:28] And then you started looking for work up here.

[00:21:29] And that became untenable, as you might imagine.

[00:21:32] Yeah.

[00:21:33] And now 10 years later, two kids...

[00:21:36] Yep, worked out, I guess.

[00:21:37] He's no longer at that firm though.

[00:21:39] He now works through an environmental nonprofit.

[00:21:41] That's great.

[00:21:43] Yeah.

[00:21:43] That's good being around the right people too

[00:21:45] because we're all kind of social activists in a way.

[00:21:47] And the world's getting so me, me, me.

[00:21:50] Interesting.

[00:21:51] What do you mean by that?

[00:21:51] I think there's less of a sense of civic responsibility

[00:21:54] or civic pride.

[00:21:56] Everything's just gotten more polarized.

[00:21:59] It's either I care about the environment

[00:22:02] or I want to lay waste to everything

[00:22:05] and I don't care about anything.

[00:22:08] I think it's hard to over generalize.

[00:22:13] People are more demanding it seems like now

[00:22:15] and they're more selfish.

[00:22:17] Is that a fair term?

[00:22:18] I don't know.

[00:22:18] I think it's kind of over...

[00:22:19] I think it's hard to over generalize

[00:22:21] because I think about...

[00:22:22] Or the selfish people are more active.

[00:22:24] Where, like think about for this generation,

[00:22:26] these generations coming up,

[00:22:29] where we have left the world for them.

[00:22:31] Oh God.

[00:22:32] Stagnant wages, broken political system,

[00:22:39] fucked environment and...

[00:22:42] And...

[00:23:09] And...

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[00:23:44] And I just think that to...

[00:23:46] What floor are we on?

[00:23:48] I'm just gonna dive out the window.

[00:23:50] I mean in some ways I find myself inspired by

[00:23:54] the kind of creativity and...

[00:23:56] It's also by the way one of the coolest times ever too.

[00:24:00] Yeah, you think so?

[00:24:01] Yeah.

[00:24:02] They came up with a vaccine for a global pandemic in a year.

[00:24:06] No one can deny the impressiveness of that vaccine.

[00:24:10] And it's never...

[00:24:11] The world's kind of going to hell on a handbasket,

[00:24:14] but it's also the best time to be gay or to be whatever.

[00:24:20] The world's grown a lot and it's also gotten weird a lot.

[00:24:26] Yeah, it's hard.

[00:24:29] It's so hard.

[00:24:29] I do think that when people...

[00:24:32] There's no polio.

[00:24:34] We have the internet which is now turned into misinformation.

[00:24:37] I didn't see that one coming.

[00:24:39] I think when people romanticize the past,

[00:24:43] that's often done at the expense of...

[00:24:45] The good old days?

[00:24:46] Yeah.

[00:24:47] White guys, we love the good old days.

[00:24:48] Exactly.

[00:24:50] It's sort of editing out whole chunks of the population from those

[00:24:55] quote unquote good old days.

[00:24:56] Yeah, but I do think there is a kind of major reckoning

[00:25:02] in terms of kind of the way that we interact as people.

[00:25:07] That those more social mores are definitely changing

[00:25:10] and there's some still shifting things to figure out.

[00:25:14] Right, for example, this is probably enough to pull this out too.

[00:25:17] It used to be embarrassing to be ignorant or racist or whatever.

[00:25:20] Now people feel free to just throw it around

[00:25:24] to express opinions that would otherwise be grossly inappropriate.

[00:25:30] Yeah, I think that there has been a certain amount of shamelessness.

[00:25:35] So and it's different because you didn't have thousands of people march on the capital

[00:25:43] with this same sense of entitlement or the you work for me attitude

[00:25:49] to where they broke into Congress and trashed the place.

[00:25:55] Yeah, there's a lot of...

[00:25:56] That would have been great.

[00:25:57] Can you imagine if they would have got a hold of like 10 people?

[00:26:01] Either party.

[00:26:02] It would have been like full hostage negotiation thing.

[00:26:05] It's really shocking that the investigation of that has become politicized.

[00:26:14] There's not just a fundamental...

[00:26:16] Right, even the political people are like,

[00:26:18] we're going to politicize this now.

[00:26:21] But yet that's what has happened.

[00:26:22] Oh, it's crazy.

[00:26:23] Everything's so politicized now.

[00:26:24] It's insane though.

[00:26:26] I mean, how and I am a Democrat and what's amazing is

[00:26:32] like the Benghazi investigation and I won't argue the legitimacy of that.

[00:26:36] But that thing went on forever hearing after hearing after hearing.

[00:26:40] And I don't think we've had one or two hearings on January 6th.

[00:26:47] Yeah, I think there is a kind of problem with the where you have

[00:26:55] one side that I think is typically trying to engage in some kind of

[00:27:01] bipartisanship and the other side that's not.

[00:27:05] The problem is, typically the thinking is you don't want to look back because

[00:27:11] you start stepping on your own agenda.

[00:27:15] As far as governing goes, focus on what you want to do and not necessarily just play

[00:27:18] the politics of looking backwards because then you're not doing anything.

[00:27:21] But God, we need to look backwards.

[00:27:23] I mean, that Trump administration, take your pick of the cabinet from Pompeo to Betsy DeVos

[00:27:29] to Wilbur Ross.

[00:27:31] Cheese.

[00:27:32] The impression I have and it's fair or unfair and I would like to think of myself as relatively

[00:27:38] you know, fair about looking at things.

[00:27:42] They all seem like they were, I mean, the level of corruption just across the board

[00:27:47] at least deserves some looking into, right?

[00:27:50] Well, I think that part of the concern is that.

[00:27:55] How come Giuliani is not, I mean if Giuliani was black, he would have been in prison for like

[00:28:01] two years already.

[00:28:04] So what's next for Browning-Farris?

[00:28:06] So now it's just, is there a date in the future or is it just sit there until,

[00:28:11] I mean, is it mere as the legal process seem like it runs a little slow sometimes?

[00:28:16] It's not just you.

[00:28:17] It's not just me?

[00:28:18] It's not just you.

[00:28:20] Yeah.

[00:28:20] I mean, oftentimes with these, you know, cases that set precedent, they end up being litigated

[00:28:27] for years and years and years and the true benefit is for those who come after.

[00:28:33] So how does this end?

[00:28:35] So Browning-Farris, how does Browning-Farris end?

[00:28:37] So right now where is it at?

[00:28:39] It's back in the DC circuit.

[00:28:40] Back in the DC circuit, remanded back for what?

[00:28:44] Well, it's not.

[00:28:46] I know, I'm not a lawyer.

[00:28:46] You tell me the lawyer stuff.

[00:28:49] So originally, DC circuit remanded it back to the labor board for clarification.

[00:28:56] That's when the Trump board got its hands on it and issued a decision.

[00:29:01] And they tried to kill it?

[00:29:02] Trying to kill it, yes.

[00:29:03] And so that decision is now on appeal by the teamsters.

[00:29:09] Did they try to kill it just by making it totally ineffective

[00:29:12] or did they try to just get it thrown out?

[00:29:14] Essentially what they said was that we're not going to apply this quote unquote retroactively

[00:29:20] to the parties involved in this case.

[00:29:23] That would be unfair.

[00:29:25] Yeah, and so then that would mean that there's no bargaining.

[00:29:29] That sounds like half a win though.

[00:29:31] Well, no, because remember the board also passed that joint employer rule.

[00:29:35] So going forward, remember the-

[00:29:38] No, I don't remember.

[00:29:39] So is that rule specifically to hobble Browning-Farris?

[00:29:46] So what the Trump board did originally was they tried to overrule Browning-Farris.

[00:29:52] Well, then we're going to back up a little bit.

[00:29:53] So Browning-Farris, the decision is made by the LRB, then goes to court, right?

[00:30:01] To the DC circuit.

[00:30:02] To the DC circuit.

[00:30:03] They have held the ruling.

[00:30:05] Correct.

[00:30:07] Trump appoints some people to the board.

[00:30:10] Correct.

[00:30:11] They issue a rule?

[00:30:13] That's what I'm saying, before they did that.

[00:30:15] Oh, before they did that.

[00:30:16] They tried to overrule Browning-Farris, but there was a little bit of a hiccup because

[00:30:22] one of the people that Trump appointed to the NLRB was a former partner at

[00:30:29] Litlar Mendelssohn, William Immanuel.

[00:30:32] And Litlar Mendelssohn is the law firm representing the staffing company in Browning-Farris,

[00:30:39] in the Browning-Farris case.

[00:30:41] And so he was conflicted out from ruling on Browning-Farris.

[00:30:47] So he was like a joint lawyer for the joint employer.

[00:30:50] So he was not allowed to rule in Browning-Farris.

[00:30:54] So then there was no majority to overrule Browning-Farris.

[00:30:59] But that's what the labor...

[00:31:01] That's amazing.

[00:31:02] Well, when the labor board did was try to overrule Browning-Farris through a different case,

[00:31:07] but then it got thrown out because it was very obvious.

[00:31:14] Did I miss that?

[00:31:14] So wait a minute.

[00:31:15] So one of the attorneys arguing Browning-Farris got appointed to the board?

[00:31:20] No, not...

[00:31:21] He was not that particular...

[00:31:22] Oh, or his firm.

[00:31:23] It's his firm.

[00:31:24] His firm.

[00:31:24] Correct.

[00:31:24] Right.

[00:31:25] But that created the conflict.

[00:31:26] Correct.

[00:31:27] That's amazing.

[00:31:27] For his participation in Browning-Farris.

[00:31:29] In Browning-Farris.

[00:31:30] But then what the labor board tried to do was overrule Browning-Farris through a different case,

[00:31:37] but it was essentially what the...

[00:31:40] There was an inspector general investigation into the situation and they realized...

[00:31:46] Wow.

[00:31:48] And there was...

[00:31:48] When did the movie come out?

[00:31:49] There were whole emails demonstrating that basically the board had sort of merged these

[00:31:55] two cases and tried to just use this other case as a vehicle for overruling Browning-Farris

[00:32:00] and having this kind of conflicted member participate.

[00:32:04] And anyway, so they ended up vacating that decision.

[00:32:08] It was this high brand case that they originally issued.

[00:32:12] So who's arguing?

[00:32:13] Arguing what?

[00:32:15] In the high brand case?

[00:32:16] Well, so in other words, who's defending the...

[00:32:20] What we would call the positive ruling, right?

[00:32:23] Well, so I am continuing to represent TM's Resolvable 350 in the FI case.

[00:32:28] So the party is still involved, right?

[00:32:30] So it still comes back to the parties?

[00:32:32] The parties, yes.

[00:32:33] And the labor board itself is also a party at the DC circuit level.

[00:32:39] So it's the labor board.

[00:32:42] So you've got the board arguing for it in some cases and then against it in the next term.

[00:32:49] So enough to make your heads spin.

[00:32:52] And this started when you were...

[00:32:54] How long had you been at the firm here?

[00:32:57] Well, I want to pull...

[00:32:58] I can't remember when we filed the petition in this case.

[00:33:00] It was like 2013-2014?

[00:33:03] Something like that, yeah.

[00:33:04] I mean, it's pretty early in your career, right?

[00:33:07] I don't know.

[00:33:08] It's kind of subjective but...

[00:33:11] I mean, in baseball terms, you would have been a seasonal veteran by then.

[00:33:15] Exactly.

[00:33:17] So how does it end?

[00:33:20] How does it end?

[00:33:21] Well, what we need to do is get a joint employer standard that the NLRB applies that makes sense.

[00:33:28] Right?

[00:33:29] We need a common sense application here because it affects real life people.

[00:33:34] Workers are wanting to try to unionize and bargain with the company that ultimately controls their employment.

[00:33:39] Not...

[00:33:40] And mentioning...

[00:33:41] And thinking of staffing company that can't actually grant vacations or wage increases or what have you.

[00:33:46] And that's a classic talking about farm workers like Taylor Farms were you involved in?

[00:33:50] Taylor Farms at all or was that somebody else around here?

[00:33:52] Um, peripherally that was not...

[00:33:54] Yeah.

[00:33:54] I mean, the farm workers typically these employment relationships that structure exists everywhere

[00:34:02] to where the growers and the canners say, you know, these aren't our employees.

[00:34:08] They're all through staffing agencies, all of them.

[00:34:11] Yeah.

[00:34:13] And they're their only client, you know?

[00:34:15] Right.

[00:34:15] And so they're...

[00:34:16] Okay.

[00:34:17] So there are so many different, you know, legal obligations on employers.

[00:34:22] So this BFI ruling is about one particular statute, the National Labor Relations Act.

[00:34:27] We're going over the top of everybody though.

[00:34:29] So why would I...

[00:34:31] I'm BFI.

[00:34:32] Why would I want a staffing agency dealing with these employees and not myself?

[00:34:38] Well, I don't know what motivated it in this particular case.

[00:34:42] It could have been to avoid unionization.

[00:34:44] It could have been to avoid, you know, paying, dealing with, you know, potential litigation

[00:34:50] over discrimination or to...

[00:34:52] Disliability.

[00:34:53] Yeah.

[00:34:53] Just quote unquote liability in general.

[00:34:56] So yeah, the structure of the relationship...

[00:34:59] Because the incentives are different than independent contractors.

[00:35:03] The incentives are different.

[00:35:05] The structure of the relationship between BFI and the staffing agency was what they call

[00:35:12] a cost, like essentially a cost plus pass through contract where they would pay

[00:35:17] X amount of dollars for each man hour of work.

[00:35:20] And that included the sort of percentage markup from minimum wage that lead point was going to

[00:35:25] park pocket, right?

[00:35:27] And then so then BFI says, well lead point, you know, you can negotiate your wages with lead

[00:35:33] point.

[00:35:34] Right.

[00:35:34] But worse, you know, we're...

[00:35:36] But ultimately they're set.

[00:35:38] We're paying this much for man hour.

[00:35:40] Exactly.

[00:35:40] So they...

[00:35:41] So anyway, BFI by creating this relationship this way is able to exercise all the control

[00:35:48] ultimately it wants because remember it's running these machines.

[00:35:51] It shuts down the machines when it wants to.

[00:35:54] It runs them when it wants to.

[00:35:55] It decides when someone works overtime.

[00:35:57] It decides how many people stand where and when.

[00:36:00] It trains these workers on how to pick things or not pick things.

[00:36:03] So it's running its business exactly the way it wants to, but then without that

[00:36:10] what you termed liability, right?

[00:36:12] Right.

[00:36:12] Which could be the obligation to bargain over wages.

[00:36:15] It could be the obligation to pay workers comp, you know...

[00:36:18] They throw a big barrier up because now you've got in this case a team sure is local,

[00:36:24] you'd much rather bargain with BFI than you would the staffing company because you

[00:36:28] can't really get anywhere with the staffing company because at the end of the day

[00:36:32] the person in control...

[00:36:33] What are you going to bargain?

[00:36:34] Yeah, it's BFI.

[00:36:34] The staffing company literally has no control.

[00:36:38] Over anything.

[00:36:39] I mean, what could you really bargain?

[00:36:41] So yeah, it's kind of a joke.

[00:36:45] It's such an extreme and obvious case in this particular instance.

[00:36:49] It's unfortunate that we're now seven plus years down the line and these workers

[00:36:56] have never been able to bargain over terms of condition.

[00:36:59] In that units probably looks a lot different now obviously than it did then, you know.

[00:37:04] Oh, of course especially because it's this temporary staffing agency that

[00:37:07] doesn't pay very much.

[00:37:08] Well, the other crazy thing too is like Tesla does a lot of this, right?

[00:37:12] And they hire these people for contracted periods of time.

[00:37:18] Right.

[00:37:18] Six months or whatever.

[00:37:19] How does that work?

[00:37:20] Well, oftentimes you will actually see those kinds of limitation terms in these contracts

[00:37:25] between a company and the staffing agency because they don't...

[00:37:32] If you have that kind of turnover it makes them a lot harder for...

[00:37:36] Tesla just to be clear, my impression of Tesla is they're a horrible employer.

[00:37:43] I mean, certainly they have engaged in union busting.

[00:37:47] Union busting and I think they've got one of the worst workman's comp records in the state too.

[00:37:53] Is that right?

[00:37:53] Yeah.

[00:37:54] And they're just aggressively anti-union.

[00:37:58] That's true.

[00:37:59] So they use all these joint employer kind of mechanisms to help prevent unionization.

[00:38:04] So how does it end?

[00:38:06] I'll ask you and how does it end?

[00:38:07] Well, what I was saying is that what we need is some kind of common sense application

[00:38:15] of this joint employer standard that matches with reality what we actually see on the ground.

[00:38:21] So is that remaking the rules?

[00:38:25] At this point when we need to either undo the Trump board rule

[00:38:31] and or get a new board with a Biden appointed majority to issue a new joint employer rule.

[00:38:42] And the third option would have to be one of those two options.

[00:38:46] Now that the rule has been promulgated, you can't undo it through a case adjudication.

[00:38:53] Okay.

[00:38:55] So the rule stands right now?

[00:38:56] The rule stands right now.

[00:38:58] Son of a gun.

[00:38:59] Son of a gun.

[00:39:00] Yep.

[00:39:01] And just to add insult to injury, the standard that they promulgated and by they I mean the

[00:39:10] Trump board promulgated in this rulemaking is even more restrictive than what BFI had overturned.

[00:39:18] The real stick in the eye.

[00:39:20] So it's the classic Trump fuck you?

[00:39:24] Yeah.

[00:39:25] Get a little payback on the, you know.

[00:39:27] Yeah.

[00:39:27] And I think that we did not do enough.

[00:39:31] We, we as in you know, I don't know what you would call labor or labor supporting allies do

[00:39:38] enough to make it clear how anti worker, anti working class Trump's agenda was.

[00:39:47] Oh, that's the appeal too to a lot of people.

[00:39:49] But I always end up talking about Trump but Trump's appeals racism.

[00:39:54] I mean, that's really the end of the line.

[00:39:57] Whether it's so a, I think a, a, I don't want to be over, I don't want to over generalize,

[00:40:05] but if you're a white male of middle to lower middle class and you have,

[00:40:12] you know, anxiety about, you know, somebody taking your job or your job being off short

[00:40:17] or exported, I think they're more than willing to a percentage of people.

[00:40:24] And this is certainly probably the exception out the rule, but I think there's a percentage

[00:40:27] of people that are eager to believe these other things basically because they don't like

[00:40:36] the look or the color of the person working next to them.

[00:40:38] And they're, they're, you know, they don't want their neighborhoods to change.

[00:40:43] They don't want them to be integrated.

[00:40:45] I think they just are more comfortable being racist.

[00:40:48] And so they'll apply these other policies thinking that, you know, they're being,

[00:40:53] they're using it as a, as a cover for their racism.

[00:40:58] Yeah.

[00:40:58] I mean, I feel uncomfortable generalizing about kind of a large swath of the voting.

[00:41:04] But I, I, what I will agree with you about is there's no doubt that, that Trump's Trump

[00:41:10] appealed to it wasn't Latino and black women storm in the Capitol in January 6.

[00:41:15] You know, there's no doubt that he used racist rhetoric.

[00:41:22] I mean, I do think that there is a feeling of loss of standing of the country sort of in the,

[00:41:33] in the world.

[00:41:34] I guess what I, what I, a loss of standing and a loss of ascendancy.

[00:41:38] And I guess where, where I see the problem is, is, is, is really with the loss of union

[00:41:47] density and the stagnation of wages.

[00:41:49] And I see that as kind of like an underlying root cause here to make people feel so,

[00:41:56] and sort of privatization of all kinds of public functions.

[00:41:59] I think that's where people have, have been left behind and have felt left behind.

[00:42:04] And it, but to me the prescription is not for the, the cure for that is exact opposite of,

[00:42:12] of Trump's policies or the Republican.

[00:42:15] I mean, like you said, I'm kind of ready to move on past even mentioning Donald Trump.

[00:42:21] I'm kind of over it and I so, but I would say that the prescription is not the Republican

[00:42:27] policy agenda in my opinion.

[00:42:30] Trumpism.

[00:42:32] So it's, God, it's because you don't want to give him any energy by saying,

[00:42:36] saying his name, right?

[00:42:38] But he has rewritten the Republican party.

[00:42:40] He's, he is re, he's altered their DNA.

[00:42:43] I think what Trump does, what his special talent is besides grabbing eyeballs by

[00:42:48] saying outrageous stupid shit is his talent is exposing the rot, exposing

[00:42:56] he, he's talented at sort of getting people to sleep with him metaphorically.

[00:43:01] You know what I'm saying?

[00:43:02] Right.

[00:43:03] And, and to kind of get people to do stuff that they never thought that they would do.

[00:43:09] No, the energy he can generate and it's, I mean as a, as a union official, right?

[00:43:14] This is the, that's the kind of energy we've, I say we've or at least I have my whole

[00:43:19] career tried to generate with people to get impassionate about things that affect their life,

[00:43:24] you know, and his ability to get, to motivate people like that's crazy.

[00:43:29] I don't know, but it again, it seems to be, you know, it's, it's he creates that by tapping into the

[00:43:36] worst, you know, the worst angels of people and getting that, that seems to animate them,

[00:43:41] as opposed to, you know, them wanting to do good.

[00:43:44] Like everything, everything that the Republican Trumpist movement is, is to,

[00:43:49] you know, it's all about like stopping something or killing something or preventing something,

[00:43:55] which may or may not even be real.

[00:43:58] Yeah.

[00:43:59] I think that, that there is an emotional connection.

[00:44:05] I don't think that any of us are above it.

[00:44:07] I think ultimately.

[00:44:08] Oh no.

[00:44:08] Yeah.

[00:44:08] There's that, that tends to carry the day emotion and emotionally emotional connection

[00:44:15] and stories, and that in fact, policy positions are the more malleable,

[00:44:24] less, less core to people's identity than I think any of us thought six years ago.

[00:44:32] And who knew we relied so much on the norms?

[00:44:36] Whoops.

[00:44:37] Whoops.

[00:44:38] I'm gonna write, wanna write some of that stuff down guys.

[00:44:41] Oh my God.

[00:44:42] And just the, just the basic one of like, you know, being an ex-president is you don't really

[00:44:50] speak about things that you're no longer a part of.

[00:44:53] That's, that's out the window.

[00:44:55] Add that to the list of murdered norms.

[00:44:58] Should have written more stuff down.

[00:44:59] I know.

[00:45:00] So you guys moved, Beeson Terre, Baudine?

[00:45:03] Yeah.

[00:45:03] We moved across the street.

[00:45:05] We're still in downtown Oakland, still on this little strip of old Oakland where

[00:45:09] the farmer's market is on Fridays.

[00:45:11] It's quite nice.

[00:45:13] What do you call the, I hope, I hope that the COVID when you put your restaurant,

[00:45:18] you put tables in the parking spaces, what are they called?

[00:45:20] There's a name for that.

[00:45:21] Parklets or something.

[00:45:22] Parklets or something.

[00:45:23] Yeah.

[00:45:23] I hope those stay forever everywhere.

[00:45:26] Yeah.

[00:45:26] There's a bunch of slow streets or closed streets and in Oakland and San Francisco.

[00:45:31] And I agree with you.

[00:45:32] I think it's great.

[00:45:33] It's awesome.

[00:45:33] Yeah.

[00:45:34] I hope they do stay.

[00:45:36] Well, Susan, thank you.

[00:45:38] Thank you.

[00:45:39] This is great.

[00:45:40] I always enjoy talking to you.

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