In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015),  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.