An NLRB case involving the construction industry provides insight into how the agency’s new joint employer standard may be applied.

The Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), provided that “the initial inquiry [under the Board’s new joint employer standard] is whether there is a common-law employment relationship with the employees in question.” The inquiry then turns to “whether the putative joint employer possesses sufficient control over employee’s essential terms and conditions of employment to permit meaningful collective bargaining.” For details, see Labor Board Sets New Standard for Determining Joint Employer Status.

In Green JobWorks LLC/ACECO, LLC, Case No. 05-RC-154596 (Oct. 21, 2015), a National Labor Relations Board regional director has declined to find a subcontractor and temporary staffing agency to be joint employers. Temporary staffing agency Green JobWorks (“GJW”) provided demolition and asbestos abatement laborers to a demolition, environmental remediation and renovation services company, ACECO, LLC. The Construction and Master Laborers’ Local Union 11 sought to represent a unit of laborers the union claimed was “jointly” employed by GJW and ACECO. However, the regional director found the parties’ Master Labor Service Agreement (“MLSA”) and the level of influence and control that ACECO exerted over GJW employees did not establish that GJW and ACECO, in fact, were joint employers.

The regional director relied heavily on the MLSA to find that GJW and ACECO were separate business entities with different management, that independently set and paid wages, maintained payroll records, withheld payroll taxes and provided workers’ compensation for their own employees. The MLSA also stated that hiring, discipline and discipline authority were solely within GJW’s exclusive discretion and control. For example, GJW recruited, hired and assigned its employees to ACECO sites, with negligible or no input by ACECO. Likewise, when GJW employees were removed from specific sites or when employment decisions were made by someone other than GJW, these decisions typically were made or directed by a general contractor or by a hygienist, not ACECO. Moreover, although the MLSA reserved the right for ACECO to remove GJW employees from job sites for safety reasons or any other reasonable objections, the regional director found this was not an unqualified right of refusal, unlike the right of refusal found to be evidence of joint employer status in Browning-Ferris Industries.

The regional director also found ACECO’s influence regarding wages was limited to the hourly rates negotiated between ACECO and GJW for certain projects, which he did not consider a strong indicator of joint employer status. Moreover, ACECO did not prohibit GJW from paying its employees more for comparable work and GJW employees could negotiate higher wages based on job record and related factors.

Finally, the regional director found ACECO exerted little to no control over “bargainable issues” such as break times, safety, speed of work and productivity.

Accordingly, the regional director directed an election for a unit comprised solely of workers employed by GJW at ACECO sites.

The union has the right to appeal the regional director’s decision, which is not considered binding in other cases.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.