In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015), discussed here, a case believed to be the first post-Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), to apply the new joint employer “test” articulated there, a National Labor Relations Board Regional Director found that a subcontractor and temporary staffing agency were not joint employers. Now, the petitioning union, disappointed by the ruling, has requested NLRB review of that decision.

The Regional Director declined to find joint employer status between ACECO, LLC, a demolition, environmental remediation and renovation services company and Green JobWorks (“GJW”), a temporary staffing agency because the Construction and Master Laborers’ Local Union 11 failed to establish “specific, detailed and relevant evidence” demonstrating a joint employment relationship.

In its request for review, the union has argued that if the Regional Director’s decision is permitted to stand, the Board’s new joint employer standard will be eviscerated “and joint employer determinations will continue to be based upon microscopic parsing of the degree and routineness of the control exercised or held by putative joint employers.” The union also argued that the Regional Director’s decision should be set aside because it was “clearly erroneous” regarding the level of control that ACECO asserted over Green JobWorks employees.

ACECO and Green JobWorks separately have opposed the union’s request. They argue the union relies on two faulty premises, that: (1) the Board’s new joint employer standard in effect is meant to impose joint employer status on all employee staffing arrangements; and (2) the relationship between ACECO and Green JobWorks is a “garden variety staffing relationship,” indistinguishable from the relationship in Browning-Ferris that was found to be a joint employer relationship by the Board.

The union has asked the Board to grant review, alleging the following NLRB criteria warrant review: (1) that a substantial question of law or policy is raised because of a departure from officially reported Board precedent; and (2) that the Regional Director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party. No time is specified for a Board ruling on the request.

 

We will continue to monitor this case and will keep you apprised of any further developments.

 

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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.