J.E. Higgins Lumber Co.

National Labor Relations Board - Board Decisions

Oct 31, 2000

332 N.L.R.B. 1172 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
J. E. Higgins Lumber Company, Employer-
Petitioner, and Teamsters Local 150, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 20–UC–389
October 31, 2000
ORDER GRANTING REVIEW AND REMANDING
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Union’s Request for Review of
the Regional Director’s Decision and Order (pertinent
portions of which are attached as an appendix). The Un-
ion’s Request for Review of the Regional Director’s De-
cision and Order is granted as it raises substantial issues
solely regarding the Regional Director’s reliance on
Greenhoot, Inc., 205 NLRB 250 (1973), in clarifying the
contractual unit to exclude individuals jointly employed
by the employer-petitioner and TLC Transportation
Staffing, Inc. In all other respects, the Request for Re-
view is denied.
On August 25, 2000, the Board issued its decision in
M. B. Sturgis, Inc., 331 NLRB No. 173, which overruled
Lee Hospital, 300 NLRB 947 (1990), and clarified
Greenhoot, Inc., supra. The Board has decided to re-
mand the issue on review to the Regional Director for
further consideration consistent with M. B. Sturgis, in-
cluding a reopening of the record, if necessary, and the
issuance of a supplemental decision concerning whether
the disputed employees are included in the unit described
in the collective-bargaining agreement.

MEMBER HURTGEN, concurring.
In M. B. Sturgis, Inc., 331 NLRB No. 173 (2000), the
Board adopted new principles to deal with the “contin-
gent work force.” Prior to M. B. Sturgis, the Board rule
was that employees, who are jointly employed by a sup-
plier employer and a user employer, could not be placed
into a bargaining unit with employees of the user, absent
the consent of both the supplier and user.1 See Lee Hos-
pital, 300 NLRB 947 (1990). In M. B. Sturgis, the Board
removed this bar, concluding that the Act does not pro-
hibit such a unit. The Board remanded, however, the
question of whether the two groups should be in the same
unit, that is, whether such a unit is appropriate under Sec-
tion 9(b) of the Act. For the reasons set forth in that
case, I agree with the holding of M. B. Sturgis. However,
I wish to take this opportunity to set forth my concerns in
this area.2

1 The terms “supplier employer” and “user employer” are those used
by the Board in M. B. Sturgis. A supplier employer is one that supplies
employees for use by another employer, while the user employer is the
employer that uses those employees.
The Board in M. B. Sturgis said that it was acting to
protect the Section 7 rights of these “contingent” em-
ployees. I write separately here to set forth my strong
view that the Board must make sure that this aim is car-
ried out.
I begin by noting that, in one sense, these employees
have always had Section 7 rights. As employees of a
joint-employer, they were always free to organize (or
refrain therefrom) in a unit consisting entirely of joint-
employer employees. They did not need the consent of
their employers to do so. The issue in M. B. Sturgis was
whether the joint employees could be combined into a
unit of employees employed solely by the user.
I agree that there is no necessary impediment to such a
unit. However, in carrying out this new policy, we must
be careful not to trample on Section 7 rights and not to
offend “appropriate unit” principles. See Overnite
Transportation Co., 322 NLRB 723, 723–724 (1996)
(explaining concept of “appropriate unit” and criteria for
determining whether unit is appropriate).
My concern is highlighted by Jeffboat and by the in-
stant case. In Jeffboat, the union sought to add the “con-
tingent” employees, by means of accretion, to an extant
unit of user employees. The same is true in the instant
case. Thus, the Union seeks to add these employees to
the existing unit without their vote. The Board’s remand
leaves that issue open. If the Union succeeds, I fear that
the Section 7 rights of these employees would be under-
mined. Ironically, a policy designed to protect Section 7
rights, may wind up undermining these rights.3
Based on the above, I would not, without an employee
vote, add the supplier/user employees to an extant unit of
user employees, unless the test for accretion is satisfied.
Under extant principles, a substantial burden is imposed
on the party who seeks by accretion to include employ-
ees without their consent. “The Board has followed a
restrictive policy in finding accretion because it fore-
closes the employees’ basic right to select their bargain-
ing representative.” Towne Ford Sales, 270 NLRB 311
(1984); Melbet Jewelry Co., 180 NLRB 107 (1969). See
also Giant Eagle Markets, 308 NLRB 206 (1992).
This substantial burden finds expression in the test his-
torically used by the Board. The Board has said that it
2 I was recused in both M.B. Sturgis and Jeffboat Division, American
Commercial Marine Service Company (Jeffboat).
3 The irony continued in M. B. Sturgis. In that case, the employer
wanted to allow the contingent employees to vote, i.e., to be included in
the unit in which an election would be held. The union sought to ex-
clude these employees.
332 NLRB No. 109
J. E. HIGGINS LUMBER CO. 1173
will add employees to a bargaining unit without their
consent “only when the additional employees have little
or no separate group identity . . . and when the additional
employees share an overwhelming community of interest
with the pre-existing unit to which they are accreted.”
Safeway Stores, 256 NLRB 918 (1981), cited with ap-
proval in Compact Video Services, 284 NLRB 117, 119–
120 (1987). On the other hand, if the Board is simply
determining a unit, in which an election will be held, the
standard “community of interest” test is used.
As noted above, I join in the remand of this case.
Thus, I do not decide the result that would flow from the
application of the foregoing tests. However, I would
note that, in many supplier/user situations, the economic
emoluments of employment for the jointly-employed
group are set by the supplier, while the emoluments for
the user group are set only by the user. For the same
reasons, the two groups are likely to have different eco-
nomic emoluments. In light of these considerations, it
may be difficult to show an overwhelming community of
interest between these two groups. Because of this, and
because of Section 7 considerations, I would generally
not force the contingency group into the user unit (i.e.,
add them without a vote). On the other hand, if the issue
is whether the two groups can be joined in one voting
unit, the standard “community of interest” test is appro-
priate. However, given the aforementioned differences
regarding economic emoluments of employment, I would
have serious concerns about this issue as well.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND ORDER
4. By the instant petition, the Employer seeks to clarify the
unit covered by its collective-bargaining agreement with the
Union to exclude certain individuals working for the Employer
who were referred to it by a temporary agency called TLC
Transportation Staffing, Inc. (herein called TLC). The Em-
ployer contends that the disputed individuals are jointly em-
ployed by the Employer and TLC and, as neither employer
consents to their inclusion in the bargaining unit, under the
Board’s decision in Greenhoot, Inc., 205 NLRB 250, 251
(1973), they must be excluded from the unit. Contrary to the
Employer, the Union asserts that the individuals at issue are
employed solely by the Employer and should be included in the
unit.
As discussed below, the parties also take opposite positions
with regard to whether the Board should defer to an award is-
sued by Arbitrator John B. LaRocco on May 14, 1999, pertain-
ing to the issues presented herein. In his Opinion and Award,
Arbitrator LaRocco found the Employer and TLC to be joint
employers of the individuals referred by TLC and that these
individuals are subject to the union security provisions of the
collective-bargaining agreement between the Employer and the
Union. The Employer argues that the Board should defer only
to that portion of the arbitrator’s Opinion and Award finding
that the Employer and TLC are joint employers of the disputed
individuals. The Union asserts that the Board should not defer
to the Arbitrator’s Award insofar as it reaches a finding of joint
employer status, and that the Board should find that the Em-
ployer to be the sole employer of the disputed employees.
Stipulations. The parties stipulated that the factual findings
set forth in Arbitrator LaRocco’s Opinion and Award regarding
the performance of work and companies at issue may be relied
on by the undersigned in resolving the issues presented herein.
The parties further stipulated that Cliff Meadows, an employee
of the Employer and a Union shop steward, had been subpoe-
naed to testify at the hearing herein and, if called as a witness,
would have testified that driver Scott Davis and warehouse
employee Dan Geiger are employed by the Employer and are
not connected with TLC in any way; that Davis and Geiger
perform precisely the same type of work, under the same su-
pervision, as the bargaining unit employees; and that Davis and
Geiger are the two employees who perform work pursuant to
Section 1(B) of the management-rights clause of the parties’
collective-bargaining agreement. This clause states that up to
two non-bargaining unit employees may do bargaining unit
work.
Background. The Employer is a non-retail supplier and dis-
tributor of lumber and related products. Its drivers and clerks
(warehouse employees) are represented by the Union. The
Employer and the Union have been parties to successive collec-
tive-bargaining agreements for several years. The union-
security clause in the 1986–1989 agreement contained at Sec-
tion 1(A) the following language: “Only bargaining unit em-
ployees shall perform work which has historically or is pres-
ently assigned to the bargaining unit.” This language does not
appear in subsequent agreements beginning with the 1989–
1992 agreement. In addition, the management rights clause of
the parties' 1989–1992 collective-bargaining agreement con-
tained a new provision, section 1(B), which stated: “The Em-
ployer agrees that except during a time when Higgins seniority
employees are on layoff, up to two (2) non-bargaining unit
employees may do bargaining unit work.” In the 1992–1995
agreement, section 1(B) of the management rights clause was
modified by placing a parenthesis around the layoff condition
so that the clause read as follows: “The Employer agrees that
(except during a time when Higgins seniority employees are on
layoff) up to two (2) non-bargaining unit employees may do
bargaining unit work.”
Negotiations over the parties’ most recent collective-
bargaining agreement ended in an impasse and, on April 14,
1997, the Employer unilaterally implemented its last best offer.
In November 1997, the Union’s membership ratified the new
agreement, which is effective for the period April 14, 1997,
until April 14, 2000. At section 15(B) of the 1997–2000 collec-
tive-bargaining agreement (hereinafter the Agreement), the
managements rights clause was modified to add language giv-
ing the Employer the right “to subcontract bargaining unit
work.” A new section 1(D) was also added stating that, “Non-
bargaining unit personnel may occasionally perform bargaining
unit work as reasonably deemed necessary by the Employer.”
Further, section 1(B) of the management-rights clause was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
modified to read: “The Employer agrees that up to two (2) non-
bargaining unit employees may do bargaining unit work.”
The record establishes that since about 1993, two non-
bargaining unit employees (driver Scott Davis and warehouse
employee Dan Geiger) have performed bargaining unit work
pursuant to section 1(B) of the management-rights clause of the
foregoing agreements. Sometime in 1997, the Employer en-
tered into a labor services agreement with TLC pursuant to
which TLC agreed to supply the Employer with up to five
qualified and licensed persons. About 6 months prior to ratifi-
cation of the 1997–2000 Agreement, two persons from TLC, a
forklift operator and a truckdriver, began to perform bargaining
unit work for the Employer on a daily basis. On July 21, 1997,
the Union filed a grievance over the failure of these individuals
to comply with the union security provisions of the Agreement.
On February 26, 1998, the Union filed a second grievance over
the failure of the TLC workers to comply with the Agreement’s
union-security provisions. By December 1998, five individuals
supplied by TLC were working at the Employer’s Sacramento
facility, including three truckdrivers and two warehousemen.
The TLC Contract. The Employer's contract with TLC is for
a 3-year period. The terms of this agreement provide that the
Employer has final approval over all TLC supplied personnel;
TLC conducts Department of Transportation (the D.O.T.) drug
screening tests for the employees it supplies; and TLC is de-
nominated as an “independent contractor.” Under the terms of
this contract, TLC hires and fires the personnel it supplies to
the Employer; TLC is obligated to hold periodic safety meet-
ings for its employees at the Employer’s expense; the Employer
provides weekly time and payroll data to TLC for TLC sup-
plied employees; TLC sends the Employer invoices on a
weekly basis for the hours worked by TLC personnel; the Em-
ployer absorbs and pays any increase in TLC’s direct operating
costs; TLC is responsible for paying the TLC personnel all
wages and benefits; TLC is not responsible for any equipment
expenses; the Employer interviews, road tests, and has final
approval over the TLC personnel who are provided to the Em-
ployer; the Employer may return any unapproved TLC worker
within two hours of the workday start time; the Employer must
maintain commercial liability insurance covering the TLC per-
sonnel and must name TLC as an additional insured; TLC
maintains workers’ compensation insurance covering the TLC
personnel; and the Employer must comply with all laws and
maintain the necessary safety and legal records for the TLC
personnel.
As indicated above, the parties have stipulated that the un-
dersigned may rely on the factual findings of Arbitrator La-
Rocca regarding the performance of work and the companies at
issue in the instant case. In his Opinion and Award, Arbitrator
LaRocco found that the workers supplied by TLC report for
work at the Employer’s facility at the same time as the Em-
ployer’s bargaining unit employees and that they work along-
side and perform the same work as the bargaining unit employ-
ees. Bargaining unit employees train the TLC personnel. TLC
truck drivers operate Employer trucks; perform deliveries; and
wear an Employer uniform as do the Employer's bargaining
unit truck drivers. The Employer’s foreman supervises both
TLC personnel and the Employer's bargaining unit employees.
Generally, if a TLC worker is ill, he or she is not replaced by
another worker from TLC. Rather, the employees of the Em-
ployer and other TLC personnel working for the Employer at
the time do the work of the absent employee.”1 TLC workers
and the Employer’s bargaining unit employees sign up for va-
cation on the same vacation schedule, attend the same meet-
ings, and participate in holiday dinners held by the Employer.
The record reflects that on one occasion, the Employer assigned
overtime work to TLC personnel without first asking bargain-
ing unit employees if they wanted to perform such work.
Arbitrator LaRocco further found that TLC pays the workers
it furnishes the Employer; makes deductions from their salaries
and pays their payroll taxes; and provides vacation pay, health
insurance, workers’ compensation, an employee assistance
program, and a credit union for its employees. TLC workers
participate in the Employer’s safety program and are also re-
quired to attend TLC safety meetings. TLC tests its personnel
for drugs before they are sent to work for the Employer. TLC
workers are not part of the Employer’s D.O.T. random drug
testing pool but rather, are within the TLC pool for this pur-
pose.
Evidence From the Record in the Instant Proceeding. The
only witness to testify at the hearing in this proceeding was
Randy Curtis Aubin. Aubin worked as a driver at the Em-
ployer’s Sacramento facility from about October 1998 until
June 1999. Before to going to work for the Employer, Aubin
saw an advertisement placed by TLC in a local newspaper. He
also spoke by telephone and in person to a TLC representative
named Rod.2 Aubin filled out a TLC employment application
which asked about his driver’s license and traffic violations.
He gave his resume, social security card and driver’s license to
Rod and filled out a W-4 form. Rod sent Aubin to a local hos-
pital for a drug test as required by D.O.T. regulations the same
day as his interview. After the results of the drug test came
back, and a couple of weeks after their interview, Rod sent
Aubin to interview with the Employer, telling Aubin that it was
a good place to work. Rod told Aubin that if he went to work
for the Employer, he would be paid $13 an hour for the first
year and $14 an hour thereafter. Aubin testified that he did not
discuss fringe benefits with Rod.
At the Employer’s facility, Aubin met with the Employer's
general manager, Rick Warner, and Foreman/Dispatcher Bruce
Watson. Warner and Watson reviewed Aubin’s resume and
discussed his work experience with him. They explained that
Aubin’s job would be to deliver lumber to the Grass Valley,
Placerville, and Sacramento areas and that his work schedule
would be Monday through Friday, from 7 a.m. until approxi-
mately 5 or 6 p.m. After the interview, Aubin telephoned Rod
at TLC who said that the Employer had selected another candi-
date for the position. Aubin told Rod that he had not done well
in the interview and that he really wanted to work for the Em-

1 However, Warner testified that on one occasion, a TLC person was
absent for a couple of days and at the Employer’s request, TLC re-
placed the person.
2 TLC has an office located approximately 5 miles from the Em-
ployer’s facility. TLC does not have or maintain an office at the Em-
ployer’s facility.
J. E. HIGGINS LUMBER CO. 1175
ployer. Rod responded that he would try to “smooth things
over.” Rod did not refer Aubin for work with another em-
ployer.
Aubin continued to call Rod seeking employment and after
about 2 weeks, Rod referred Aubin to the Employer for another
interview. He again met with Watson and Warner at the Em-
ployer’s facility. At the conclusion of this interview, Watson
and Warner told Aubin that they would contact TLC about
hiring him. Aubin began working for the Employer about 2
days later. Although Aubin recalled receiving an employee
handbook from TLC, he could not recall being given an em-
ployee handbook by the Employer.
Aubin testified that he was trained in all aspects of his driv-
ing responsibilities by an employee of the Employer. Aubin
punched in for work using the same time card and the same
time clock as was used by other employees of the Employer.
He was paid $13 an hour on a weekly basis by direct deposit.
The pay stubs mailed to Aubin reflected that his paychecks
were issued by TLC. TLC took deductions for State and Fed-
eral taxes and state disability insurance from his paychecks.
According to Aubin, TLC offered fringe benefits (i.e., medical
and a 401(k) plan) that were self-contributory and he did not
choose to participate in them. Aubin testified that the benefits
package provided by TLC was different than that provided by
the Employer to its employees.
Aubin did not ask for or receive vacation time during his
tenure with the Employer and he was unaware as to whether he
had been paid for vacation time in his final paycheck from
TLC. He was paid for five holidays by TLC. Aubin was ab-
sent 1 day of work while working for the Employer and was
paid for this day by TLC. He drove an Employer truck similar
to those driven by the Employer's bargaining unit employees.
Aubin’s immediate supervisor was Foreman/Dispatcher Bruce
Watson who also supervised the Employer’s bargaining unit
drivers and clerks. If Aubin had a problem while on his route,
he contacted the Employer’s foreman/dispatcher, Watson.
During the time Aubin worked at the Employer’s facility, the
Employer conducted three or four safety meetings that were
attended by all of the Employer’s shop employees as well as all
the TLC personnel working in the shop. No TLC representa-
tives, other than the persons that had been referred to work at
the Employer’s facility, attended these safety meetings at the
Employer’s facility. Aubin testified that he also attended one
safety meeting at TLC ‘s office after receiving a letter notifying
him that it was a mandatory meeting. Aubin was not disci-
plined during his tenure of employment with the Employer and
the record does not contain any evidence of specific discipli-
nary matters involving TLC personnel.
The Employer provided Aubin with a uniform similar to that
worn by bargaining unit employees. Employer Dispatcher
Bruce Watson gave Aubin keys to the Employer’s facility, the
access codes for entering different parts of the facility and a
fuel card. Aubin also attended an Employer Christmas party
that both Employer and TLC employees were invited to attend.
Aubin testified generally that he had very little contact with
TLC after he began working at the Employer’s facility.
After he had worked for the Employer about two weeks,
Aubin spoke to a TLC clerical named Chris about getting a
raise and was told that it usually took a year and that she would
get back to him. Aubin then went to Employer Dispatcher
Watson, told him that he had a better job offer, and that he
needed benefits and more money or he would be forced to
leave. Watson responded that he would see what he could do.
A few days later, Aubin told Watson and Employer General
Manager Warner that he “needed a raise and a full-time job
away from the temporary agency.” They responded that be-
cause of the pending arbitration proceeding, they could not hire
him directly, but that they would get back to him. They tried to
convince Aubin to stay with the Employer; that there was a
future for him. They subsequently called Aubin and told him
he could have a $1 raise from TLC and start putting away
money towards his retirement and pension. Shortly thereafter,
Aubin quit his job at the Employer’s facility. He has not
worked for the Employer or for TLC since this date.
Aubin testified that during his tenure of employment with
TLC, he considered the Employer to be his employer. How-
ever, he further testified that at the time of the above-described
meeting with Warner and Watson, he was not employed by the
Employer and that he was asking to be hired directly by the
Employer. Aubin testified that the final paycheck he received
for his work at the Employer’s facility was from TLC, and that
in the spring of 1999, he received a W-2 form from TLC for tax
purposes. He did not receive a W-2 form from the Employer.3
The Arbitrator’s Opinion and Award. As indicated above,
on July 21, 1997, and February 26, 1998, the Union filed griev-
ances over the failure of TLC personnel working at the Em-
ployer’s facility to complete their union membership obliga-
tions pursuant to the union-security provisions of its collective-
bargaining agreement with the Employer. On December 8,
1998, these grievances were heard by Arbitrator LaRocco. At
the arbitration proceeding, the parties stipulated that the arbitra-
tor would address following issues: “(1) Whether the individu-
als employed by TLC Transportation Staffing, Inc. are subject
to the collective-bargaining agreement between Teamsters Lo-
cal 150 and Higgins Lumber Company; and (2) If the answer is
No, did the Company’s subcontracting otherwise violate the
applicable collective-bargaining agreement? If yes, what is the
remedy?” The parties further stipulated that if the Arbitrator
answered in the affirmative to either of the issues, he would
remand the case to the parties to mutually work out an appro-
priate remedy and that the Arbitrator would retain jurisdiction
over the case.

3 At the hearing, the Employer’s counsel made and offer of proof
that if TLC President/CEO Paul Driskell, were called as a witness, he
would testify as follows: that TLC is a professional contract staffing
agency; TLC is not in the business of selling lumber; it is separately
incorporated and maintains offices separate from the Employer; the
Employer has no financial control over TLC and TLC has no financial
control over the Employer; the Employer has no equity or ownership
interest in TLC and TLC has no equity or ownership interest in the
Employer; TLC has many other customers in both northern and south-
ern California; the Employer’s business represents less than 2 percent
of TLC’s overall business; and that other than the individuals whose
unit placement is disputed in this case (drivers and warehousemen),
TLC and the Employer share no other employees or managers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
As indicated above, in his Opinion and Award, Arbitrator
LaRocco found that the Employer and TLC were joint employ-
ers of the individuals TLC referred to work for the Employer.
He also found that because there were already two non-
bargaining unit employees performing bargaining unit work as
provided for in section 1(B) of the contract, the workers TLC
referred to the Employer were subject to the union security
provisions of the Agreement. As the parties had agreed that the
Arbitrator would remand the case back to the parties to mutu-
ally work out an appropriate remedy if he answered either of
the issues presented to him in the affirmative, the Arbitrator
remanded the case to the parties to work out a remedy and re-
tained jurisdiction over the case.
TLC’s Position. No representative of TLC appeared at or
participated in the hearing in this proceeding. The record con-
tains, as a joint exhibit, a letter from Paul C. Driskell, presi-
dent/CEO of TLC, dated July 14, 1999, which states that not-
withstanding the decision of Arbitrator LaRocco, TLC had no
notice of the underlying grievances, was not represented at the
arbitration proceeding and does not believe it is bound by the
arbitrator’s award. In his letter, Driskell further states:

Moreover, and to be very clear, TLC has never con-
sented in any way, shape or form, and does not now con-
sent, to the inclusion of individuals it employs and assigns
to work at Higgins’ Sacramento facility in the unit of em-
ployees Local 150 represents at that location.

By letter to the Regional Director of Region 20 of the Board
dated July 15, 1999, TLC’s attorney notified the undersigned of
TLC’s position in this regard and that it did not wish to become
a party to the instant unit clarification proceeding.
Analysis. It is well established that questions of representa-
tion, accretion and appropriate unit do not depend upon con-
tract interpretation but rather upon the application of statutory
policy. See Williams Transportation Co., 233 NLRB 837, 838
(1977); Marion Power Shovel Co., 230 NLRB 576, 577–578
(1977). In the instant case, the question as to whether TLC and
the Employer are joint employers of the individuals referred by
TLC is the determinative issue with regard to the unit place-
ment of such persons. In these circumstances, this is clearly an
issue for the Board to decide and I decline to defer to the Arbi-
trator’s decision on this issue. However, the parties have stipu-
lated that I may rely on the factual findings of the Arbitrator as
set forth in his Opinion and Award in reaching my decision
herein. Accordingly, I have carefully reviewed the evidence in
the instant proceeding as well as the factual findings of Arbitra-
tor LaRocco in making my decision herein.4

Em

4 No party contends that the unit clarification petition herein is un-
timely or that a unit clarification proceeding is an inappropriate pro-
ceeding within which to resolve the issue of the unit placement of the
TLC personnel. I find that this proceeding is the appropriate means to
resolve this issue. Thus, there is no evidence that the Employer, the
Union and TLC have ever agreed to the inclusion of the disputed TLC
personnel in the bargaining unit. Rather, the Employer began using
TLC to supply personnel in 1997; in July 1997, and in February 1998,
the Union filed grievances alleging that certain individuals (i.e., TLC
personnel) who were allegedly employed by the Employer, failed to
complete their Union membership obligations under the collective-
It is well settled that a joint employer relationship is estab-
lished when otherwise independent businesses share or co-
determine matters governing significant and essential terms and
conditions of employment of a group of employees. NLRB v.
Browning–Ferris Industries, 691 F.2d 1117, 1121–1124 (3d
Cir. 1982); Martiki Coal Corp., 315 NLRB 476, 477 (1994);
Windemuller Electric, 306 NLRB 664, 666 (1992), citing Boire
v. Greyhound Corp., 376 U.S. 473, 481 (1964). To establish a
joint-employer relationship, there must be a showing that the
employer meaningfully affects matters relating to the employ-
ment relationship such as hiring, firing, discipline, supervision
and direction. Lee Hospital, 300 NLRB 947, 948 (1990); TLI,
Inc., 271 NLRB 798 (1984); Laerco Transportation, 269
NLRB 324 (1984).
In the instant case, the evidence establishes that TLC recruits
and hires the employees it refers to the Employer. TLC con-
firms the immigration status and employment eligibility of
these individuals, performs the mandatory D.O.T. background
checks and drug screening and provides these individuals with
its employee handbook and rules which are different from those
of the Employer. TLC also pays these employees, makes tax
and other deductions from their pay, and provides for their
benefits. The pay and benefits TLC provides to its personnel
and employees are different from those provided by the Em-
ployer to its employees. TLC also pays for workers’
compensation insurance for the employees it supplies to the
ployer. After TLC personnel are placed with the Employer, the Em-
ployer trains them, and provides their uniforms, equipment,
timecards, timeclock, and their day-to-day supervision. The
TLC personnel work alongside the Employer's bargaining unit
employees performing the same type of work and using the
same equipment as they. The Employer keeps the time records
of hours worked by TLC personnel and transmits this informa-
tion to TLC.

In view of the foregoing, it is plain that the Employer and
TLC share or codetermine matters governing significant and
essential terms and conditions of employment of the individuals
at issue and meaningfully affect matters relating to their em-
ployment relationship. Thus, I find that TLC and the Employer
share or codetermine the hire and the remuneration of the per-
sons referred to the Employer by TLC and that the Employer
affects their daily supervision and direction of their work. Ac-
cordingly, I find, as did Arbitrator LaRocco in his Opinion and
Award, that the Employer and TLC are joint employers of the

bargaining agreement. These grievances were the subject of Arbitrator
LaRocco’s Opinion and Award which, if enforced, could result in the
effective accretion of the TLC personnel into the bargaining unit over
the objections of TLC and the Employer. However, as stated above,
questions concerning representation do not depend upon contract inter-
pretation but rather upon the application of statutory policy and are for
the Board to decide rather than an arbitrator. A unit clarification pro-
ceeding is the appropriate vehicle for such decision making by the
Board. See Williams Transportation Co., 233 NLRB 837, 838 (1977);
Marion Power Shovel Co., 230 NLRB 576, 577–578 (1977); Bethlehem
Steel Corp., 329 NLRB 243, 244 fn 5 (1999). Moreover, the petition
herein is not untimely filed given that it was precipitated by the Arbitra-
tor’s Opinion and Award which, if enforced, could result in the dis-
puted positions being effectively accreted into the unit. Id.
J. E. HIGGINS LUMBER CO. 1177
employees at issue herein. See Brookdale Hospital Medical
Center, 313 NLRB 592 (1993).5
The Union’s reliance on Lee Hospital, 300 NLRB 947
(1990), to support its assertion that the Employer is the sole
employer of TLC personnel, is misplaced. In Lee Hospital, the
Board found a hospital employer to be the sole employer of
certified registered nurse anesthetists (CRNAs) working in its
anesthesia department which was operated by a separate corpo-
ration with whom the hospital employer had a contract. In
finding that hospital and the contractor were not joint employ-
ers of the employees at issue, the Board noted that control over
critical terms and conditions of employment of the employees
at issue rested solely with the hospital. In this regard, the
Board noted that the hospital’s control extended to such matters
as hiring, wages, fringe benefits, and authority to terminate the
employees at issue. By contrast, in the instant case while the
Employer has control over the daily supervision of workers
supplied by TLC, TLC has control over their hire, termination,
wages and fringe benefits. Thus, TLC retains and exercises
control of the “hire and remuneration” of the employees at

5 No party contends that the Employer and TLC are alter egos or a
single employer and the record does not support such a finding. In this
regard, the record reflects that TLC and the Employer are in different
types of businesses; are separately owned; have separate office loca-
tions; have separate management; and there is no common control of
labor relations between them.
issue. As the Board stated in Brookdale Medical Center, supra,
313 NLRB at 593, “We believe that these very matters—hire
and remuneration—are essential terms and conditions of em-
ployment.” In these circumstances, I find that the Board’s de-
cision in Lee Hospital, does not support a finding that the em-
ployees at issue in the instant case are solely employed by the
Employer.
It is well established that employees of joint employers may
not be included in a bargaining unit with employees of a single
employer, absent the consent of both employers. See Hex-
acomb Corp., 313 NLRB 983 (1994); Brookdale Hospital
Medical Center, supra, at 593 (1993); Greenhoot, Inc., 205
NLRB 250 (1973). In the instant case, TLC has made clear its
objection to having its employees included in the bargaining
unit of the Employer’s employees represented by the Union.
Accordingly, I will grant the Employer’s petition to clarify the
recognized contractual unit to exclude the individuals jointly
employed by the Employer and TLC.
ORDER
IT IS HEREBY ORDERED that the existing contractual
bargaining unit represented by Teamsters Local 150, Interna-
tional Brotherhood of Teamsters, AFL–CIO, be, and it hereby
is, clarified to exclude employees jointly employed by the Em-
ployer and TLC.