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facility related primarily to preparing validation studies to
obtain approval of an application that MedChem U.S.A. had made to
the FDA for Endo-Avitene. Dr. Ferdman also worked at the Alcon
P.R. facility from April through August 1990 studying and
learning Avitene’s manufacturing process so that MedChem U.S.A.
could later in that year move that process into, and implement
that process in, MedChem U.S.A.’s Woburn facility. MedChem P.R.
did not have a research and development function, and it played
no part in the development of new Avitene or the development of
other products.
Kelly provided temporary labor to Alcon P.R. at its
facilities from June 1990 through August 31, 1992, pursuant to
their written agreement stating in relevant part that the “Kelly
assigned employees, are the employees of Kelly, and none of said
persons assigned under this contract shall be regarded as
employees of [the buyers of the services]”. Neither petitioner
was involved with that or any other agreement concerning
temporary labor to be provided at the Alcon P.R. facility. As
relevant herein, Kelly charged Alcon P.R. $20.40 per hour for the
use of a Kelly employee and included in this rate the cost of
Kelly’s obligation to pay its employees’ workers’ compensation,
unemployment insurance, and Social Security taxes.
Kelly supplied Alcon P.R. with two of the three people who
worked at the Alcon P.R. facility from July 1990 through August
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