Recana Solutions

National Labor Relations Board - Board Decisions

May 25, 2007

349 N.L.R.B. 1163 (N.L.R.B. 2007)

RECANA SOLUTIONS
349 NLRB No. 109
1163
Albert Eaddy d/b/a Recana Solutions and Service
Employees International Union (SEIU) Local
100, Petitioner. Case 16–RC–10754
May 25, 2007
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On December 15, 2006, the Regional Director for Re-
gion 16 issued a Decision and Order finding that Recana
Solutions is not “the” employer of the petitioned-for
temporary day laborers, and therefore dismissed the peti-
tion. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board’s Rules and Regula-
tions, the Petitioner filed a timely request for review. On
January 17, 2006, the Board granted the Petitioner’s re-
quest for review. Thereafter, the Employer filed a brief
on review.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having carefully considered the entire record, includ-
ing the brief on review, we find, contrary to the Regional
Director, that Recana Solutions is “an” employer of the
petitioned-for employees. Accordingly, we reinstate the
petition and remand this case to the Regional Director for
further processing.
Recana Solutions (Recana) is a sole proprietorship. In
January 2005, Recana entered into a 3-year, $6 million
contract with the City of Dallas, Texas (the City), to pro-
vide temporary day laborers to work in the City’s sanita-
tion department. The contract between Recana and the
City specifies the qualifications for the sanitation jobs,
and states, among other things, that Recana is to provide
safety training, drug and alcohol screening and testing,
and maintain workmen’s compensation and general li-
ability insurance coverage.1 The contract states that Re-
cana must pay temporary day laborers the Federal mini-
mum wage, but does not preclude Recana from paying
them a higher wage. The contract requires that Recana
make wage payments directly to the temporary day la-
borers. Recana is responsible for all withholding, re-
cordkeeping, and reporting of Federal taxes and other
payroll deductions. Although Recana does not pay
fringe benefits to temporary day laborers, the contract
does not preclude it from doing so.2 The contract states
that Recana “shall exercise independent judgment in per-

1 Pursuant to the contract, Recana is responsible for work-related in-
juries. The agenda information sheet from the City Council Hearing on
January 26, 2006, about the time that Recana was awarded the contract,
states that “Workers remain employees of the temp agency for liability
and workers’ comp coverage, but receive daily work supervision from
City staff.”
2 The City provides its employees with benefits, such as health in-
surance and vacation and holiday pay.
forming duties under [the] Contract and is solely respon-
sible for setting working hours, scheduling or prioritizing
the work flow and determining how the work is to be
performed.”3 Also pursuant to the contract, Recana has
the right to control temporary day laborers away from
City worksites. It has the right to control which tempo-
rary day laborers are assigned and to what locations they
are assigned. It may subcontract any aspect of the work.
Recana selects and transports persons seeking work
from day laborer sites to City jobsites and gives them a
job application to complete. City representatives choose
individuals from this pool of laborers to work for the day
and assign them to a City sanitation truck, where they
work alongside with and share the same supervision as
City employees. The City does not provide temporary
day laborers with uniforms or equipment as it does for
City employees. Recana provides a timesheet for the
temporary day laborers on which they record the hours
they work.
As contractually permitted, Recana pays another com-
pany, Tolman Building Maintenance (Tolman), to pro-
vide bookkeeping, payroll, and transportation services.
The City provides Tolman with timesheets showing who
has been employed as a temporary day laborer and how
many hours those individuals have worked. Tolman
writes paychecks to the temporary day laborers on
checks drawn from Recana’s bank account and delivers
them to City jobsites for distribution. Tolman also pro-
vides a driver who transports work-seeking individuals to
City jobsites.
The Regional Director’s Decision
The Regional Director found that Recana is not “the”
employer of the petitioned-for employees because, in her
view, Recana “plays no actual role in the employment
relationship with” the temporary day laborers. The Re-
gional Director found that Recana does not determine
hiring criteria, does not supervise or discipline temporary
day laborers after the City selects them to work, and, in
general, does not maintain any employment policies that
apply to the temporary day laborers. The Regional Di-
rector concluded that the City and Tolman are “primarily
engaged in an employment relationship” with the tempo-
rary day laborers who Recana provides under its contract
with the City. The Regional Director dismissed the peti-
tion as “procedurally defective,” because it did not name
Tolman as the employer and Tolman was not served as a
party-in-interest.

3 However, there is testimony, discussed below, that the parties’ ac-
tual practice in this regard is somewhat different from that specified in
the contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
The Parties’ Contentions
The Petitioner contends that the Regional Director
erred by disregarding Recana’s contractual relationship
with the City. The Petitioner asserts that, notwithstand-
ing certain contract provisions, Recana is free to set the
pay of its employees, as long as it is at least the mini-
mum wage, and that Recana exercises independent
judgment by selecting which individuals it will transport
from day laborer sites to City jobsites. It disputes the
Regional Director’s finding that Tolman is in an “em-
ployment” relationship with the temporary day laborers.
The Petitioner emphasizes that Tolman’s only involve-
ment with the laborers is to provide transportation and to
prepare their paychecks and that Recana pays Tolman for
these services as it is permitted to do under the contract.
The Petitioner also emphasizes that the temporary day
laborers are working for Recana’s profit, not Tolman’s,
and that Recana, not Tolman, has assumed all duties,
rights, and obligations under the contract.
Recana asserts that the City is the “true employer” of the
temporary day laborers because, according to Recana, the
City manages and directs every aspect of the temporary
day laborers’ daily working conditions.4 Recana insists
that it merely provides payroll and transportation services
and assists in recruiting temporary day laborers willing to
be hired by the City. Recana also contends that the par-
ties’ actual practice in applying the terms of the contract
differs from the explicit terms of the contract and supports
a finding that the City is the actual employer of the tempo-
rary day laborers that Recana supplies.
Analysis
The issue in this case is not whether Recana is “the”
employer of the temporary day laborers the Petitioner
seeks to represent. Rather, the relevant inquiry is
whether Recana, a supplier of temporary labor, is “an”
employer, within the meaning of Section 2(2) of the Act,
of these employees.5 And if Recana is an employer, the
Petitioner may seek to represent the day laborers em-
ployed by Recana, irrespective of Recana’s relationship
to other entities that may also employ such individuals.

4 Contrary to the Regional Director’s finding, Recana does not con-
tend that Tolman is an employer of the temporary day laborers. Re-
cana’s position at the hearing was that the Board did not have jurisdic-
tion, as the City was the true employer of the day laborers.
5 Sec. 2(2) of the Act states as follows:
The term ‘employer’ includes any person acting as an agent
of an employer, directly or indirectly, but shall not include the
United States or any wholly owned government corporation, or
any Federal Reserve Bank, or any State or political subdivision
thereof, or any person subject to the Railway Labor Act, as
amended from time to time, or any labor organization (other than
when acting as an employer), or anyone acting in the capacity of
officer or agent of such labor organization.
See Management Training Corp., 317 NLRB 1355
(1995).6
In Management Training, the Board dispensed with
the “extent of control” test that previously governed
cases where a private employer contracts with a Gov-
ernment entity.7 The Board held in that case that where a
Government entity controls most of the petitioned-for
employees’ terms and conditions of employment, the
Board’s assertion of jurisdiction over a private company
with close ties to that exempt Governmental entity would
be based on whether the company itself meets the defini-
tion of “employer” under Section 2(2) of the Act, and
whether such an employer meets the applicable monetary
jurisdictional standards. In other words, “jurisdiction
[w]ould no longer be determined on the basis of whether
the employer or the Government controls most of the
employee’s terms and conditions of employment.” Id. at
1357. See also, e.g., Jacksonville Urban League, 340
NLRB 1303 (2003).8 Instead in determining the jurisdic-
tional question presented, the Board will focus on
whether the private employer controls some matters re-
lating to the employment relationship involving the peti-
tioned-for employees, such as to make it an “employer”
under the Act.
The Employer in question must, by hypothesis, control
some matters relating to the employment relationship,
or else it would not be an employer under the Act. In
our view, it is for the parties to determine whether bar-
gaining is possible with respect to other matters and, in
the final analysis, employee voters will decide for
themselves whether they wish to engage in collective
bargaining under these circumstances. Management
Training, supra at 1358.
Consequentially, the question presented is whether Re-
cana controls some matters relating to the employment

6 The parties stipulated that Recana satisfies the Board’s monetary
standards for asserting jurisdiction. Specifically, they stipulated that,
during the 12-month period before the hearing, Recana “performed
services valued in excess of $50,000 for the City of Dallas which the
City of Dallas purchased and received goods valued in excess of
$50,000 directly from suppliers located outside of the State of Texas.”
7 The “extent of control” test was articulated in Res-Care, Inc., 280
NLRB 670 (1986).
8 All the United States Courts of Appeals that have considered the
issue have affirmed the Board’s test in Management Training. See
Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997);
Pikeville United Methodist Hospital of Kentucky v. NLRB, 109 F.3d
1146 (6th Cir. 1997); and Aramark Corp. v. NLRB, 179 F.3d 872 (10th
Cir. 1999).
Recana argues that should we find that it is an employer of the em-
ployees, we should reconsider Management Training and return to the
standard under Res-Care, Inc., supra. We decline to do so. See Jack-
sonville Urban League, supra.
RECANA SOLUTIONS 1165
relationship involving the temporary day laborers sup-
plied to the City. The Regional Director concluded that
“[t]he uncontroverted facts in this matter reflect that Re-
cana plays no actual role in the employment relationship
with the petitioned-for bargaining unit.” We disagree.
We find, to the contrary, that the record establishes that
Recana has control of “some matters relating to the em-
ployment relationship” and, therefore, is an employer of
the petitioned-for employees.
The City contracted to pay Recana $6 million to pro-
vide it temporary day laborers. There is no dispute that
these laborers are statutory employees. Further, it is un-
disputed that Recana has fulfilled the terms of its con-
tract with the City by engaging in the employment func-
tions of supplying these employees to the City. Day la-
borers fill out a job application with Recana.9 Recana
then selects, transports, and pays the individuals for the
work they perform. Significantly, also, while Recana
pays the temporary day laborers the Federal minimum
wage, its contract with the City does not preclude Recana
from paying them a higher amount.10 Finally, there are
various noneconomic terms of employment that may be
subject to collective bargaining, such as provisions for
uniforms or training. In sum, Recana has some control
over important matters in the employment relationship.
In light of the foregoing, we find Recana is an “em-
ployer” under the Act. Management Training, supra at
1358; Teledyne Economic Development v. NLRB, 108
F.3d 56, 58 (4th Cir. 1997).
That the City controls many aspects of the temporary
day laborers’ employment including control over them
while they perform their sanitation tasks does not nullify
Recana’s employment relationship with them. Given
that Management Training has dispensed with the “ex-

9 The Employer gave one instance in which a laborer completed the
Recana application at the City’s jobsite and submitted it to a City su-
pervisor.
10 The record reveals that temporary day laborers selected and re-
ferred by KFC, the predecessor contract holder with the City, began
with the minimum Federal wage and received raises, ranging from 25
to 50 cents, after they had worked for a year or more under similar
arrangements with the City.
tent of control” test, what is relevant is that Recana main-
tains sufficient control to qualify as a statutory employer.
Moreover, that Recana pays Tolman to perform book-
keeping, payroll, and transportation services as a means
of fulfilling its contractual obligations does not defeat
Recana’s status as an employer. Tolman is not named in
the contract with the City, Tolman does not provide any
temporary day laborers to Recana, and the City does not
pay Tolman to perform a service. Further, Recana does
not claim that Tolman is the employer of the petitioned-
for employees. Tolman’s involvement in writing checks
and providing transportation, which may make Tolman
an agent for Recana, does not negate Recana’s status as
an employer.11 Indeed, the job applications, the time-
sheets, and the paychecks are all captioned with the name
“Recana Solutions.” We find this ample evidence of
Recana’s status as an employer of the day laborers.
Accordingly, we find that Recana is an employer of
the petitioned-for employees and meets the Management
Training test. We shall reinstate the petition and remand
the case to the Regional Director for further processing.12
ORDER
The Regional Director’s dismissal of the petition is re-
versed. Therefore, we shall reinstate the petition and
remand the case to the Regional Director for further ap-
propriate action.

11 The reference in the employment application to the possibility of
temporary day laborers’ finding permanent work with Tolman does not
mean that Recana is not their employer while they work for the City.
12 At the hearing, the parties stipulated that the following unit is ap-
propriate under the Act:
All temporary laborers assigned to work under the City of
Dallas Sanitation Department under the contract between
the City of Dallas and Albert Eaddy, d/b/a Recana Solu-
tions, executed on January 26, 2005, excluding guards, su-
pervisors, clericals and other employees.