Chicken Little Syndrome No More – NLRB Regional Director’s Recent Joint Employment Decision Proves the Sky Is Not Falling [Yet, Anyway]
By Ruder Ware Alumni
December 7, 2015
In the aftermath of the National Labor Relations Board’s recent, controversial Browning-Ferris Industries “joint employment” decision [362 NLRB No. 186], many within the management-side legal community [myself included] issued portentous predictions about the future –including Trojan Horse organizing tactics and the adverse impact on pervasive contingent workforce arrangements. However, one of the Board’s Regional Directors [Region Five] even more recently declined to find that a company and temporary staffing agency were joint employers under the new Browning-Ferris Industries joint-employment rubric. The case is Green JobWorks, LLC/ACECO, LLC, Case No. 05-RC-154596 [available here: Green_JobWorks. At least for the moment—while the union appeals the decision—the sky is not falling.
In Green JobWorks, the union filed an election petition seeking to represent temporary demolition and asbestos-abatement workers supplied to ACECO [a licensed demolition and environmental-remediation construction contractor] by Green JobWorks [the staffing agency]. Not surprisingly, ACECO resisted the union’s efforts to obligate ACECO to bargain with the union in connection with the demolition and asbestos-abatement workers [in the event of a successful election, of course]. The Regional Director concluded that ACECO and Green JobWorks were not subject to the union’s election petition—and that only Green JobWorks was—based on the following factors:
- The contingent workforce contract entered into between Green JobWorks and ACECO placed all demolition and asbestos-abatement worker hiring, disciplinary and firing discretion exclusively with Green JobWorks.
- There was insufficient evidence that ACECO, in practice, influenced the decisions of Green JobWorks in terms of hiring, discipline, firing and other terms and conditions of employment.
- There was insufficient evidence that ACECO influenced the wage rates Green JobWorks paid the demolition and asbestos-abatement workers.
- ACECO had minimal involvement with “how” to do the job—but only assigned daily tasks.
- Evidence suggested that the general contractor or Green JobWorks, not ACECO, had control over terms of employment affecting break times, safety, speed of work, scheduling and productivity of workers.
This is a significant case to watch—and we will continue to track it as it moves through the appeals process.
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