In the first reported decision since the Board’s holding in Browning-Ferris, the Regional Director for Region 5 of the NLRB found that, with respect to the particular facts in a case before that Region, the union failed to establish a joint employer relationship. The case arose in the context of a staffing agency, GJW, providing temporary labor to various construction companies in the Maryland, Washington, D.C., and Virginia areas. The other employer involved was ACECO, who was a construction company engaged primarily in asbestos removal in the same geographic area who used GJW employees to supplement their workforce. The facts in the case were very favorable for the finding that there was not a joint employer relationship. Indeed it appears that both employers were quite prepared in avoiding such a finding. The contract language, in particular, made it clear that the temporary service, GJW, acted independently to the contractor it served. More importantly, as a practical matter, both parties acted in accordance with the written terms of the contract; meaning they not only agreed to keep employment matters separate in writing, they kept matters separate in practice, including supervision, benefits, wages, and overall working conditions. In particular, ACECO did not engage in those activities that normally result in a joint employer finding, such as being involved in the hiring process, regularly supervising and disciplining the temporary service employees, assigning them specific work assignments, and otherwise acting as their employer.
To be perfectly frank, it appears that the union did not do their homework in this situation as there was not a single employee who presented evidence on behalf of the union that would undermine the employers’ position that there was no joint employer relationship. Now maybe those facts did not exist, but in the real world I think we all recognize that there are enough situations that arise, especially in the temporary service world, where common supervision, assignment of work, and control over working conditions often takes. Why the record fails to produce such evidence, again, may be a function of the employers’ being at the ready, but after reading this decision, most unions will be very aware that it is not going to be a “slam dunk” in obtaining joint employer status and they should not get too cocky in their presentations at such hearings. So a word of caution to other employers, I think this is going to be a “heads-up” to the unions to be more aggressive in presenting evidence on the joint employer issue and not simply rely upon the assumed pro-union stance of the Board.