Retro Environmental, Inc. and Green JobWorks, LLC

National Labor Relations Board - Board Decisions

Aug 16, 2016

364 NLRB No. 70 (N.L.R.B. 2016)

364 NLRB No. 70
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Retro Environmental, Inc./Green Jobworks, LLC and
Construction and Master Laborers’ Local 11,
a/w Laborers’ International Union of North
America (LIUNA) Petitioner. Case 05–RC–
153468
August 16, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On June 26, 2015, the Regional Director for Region 5
issued a Decision and Order, in which he found “a color-
able claim of a joint employer relationship” between Ret-
ro Environmental, Inc. (Retro) and Green JobWorks,
LLC (Green JobWorks), but dismissed the petition based
on his finding that the Employers met their burden of
proving an imminent cessation of operations. Thereafter,
in accordance with Section 102.67 of the Board’s Rules
and Regulations, the Petitioner filed a timely request for
review. The Petitioner contends that the Regional Direc-
tor erred by finding an imminent cessation of operations.
Green JobWorks filed an opposition.
On November 5, 2015, the Board granted the Petition-
er’s request for review. Thereafter, the Petitioner and
Green JobWorks filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
proceeding, including the briefs on review, we find that
Retro and Green JobWorks are joint employers of the
employees in the petitioned-for unit, and contrary to the
Regional Director, we find that the Employers failed to
meet their burden of proving an imminent cessation of
operations. Accordingly, we reinstate the petition and
remand this case to the Regional Director for further ap-
propriate action.
I. FACTS
The Petitioner seeks to represent a unit of full-time and
regular part-time laborers, including demolition and as-
bestos workers, jointly employed by Retro and Green
JobWorks. Green JobWorks is a temporary staffing
agency in Baltimore, Maryland that provides demolition
and asbestos abatement laborers to approximately 15 to
20 client construction companies, including Retro. Retro
is a construction company engaged in the business of
providing demolition and asbestos abatement services to
private and government entities in the mid-Atlantic re-
gion. Retro engages approximately four temporary labor
companies, including Green JobWorks, to provide tem-
porary labor on specific projects.
During the summer of 2015, Green JobWorks provid-
ed employees to Retro for work on two projects involv-
ing demolition and asbestos abatement at the DC Schol-
ars Charter School and at Powell Elementary School.1
At the time of the hearing (June 11), Green JobWorks
had assigned a total of 33 employees to work at least 1
day at the DC Scholars and Powell sites, and Retro ex-
pected the number of employees at the sites to increase to
approximately 80–110 total employees between June 20
and June 22 (after the schools closed for the summer).
Both projects were expected to cease in mid-July because
both sites were scheduled to reopen for classes in Au-
gust. Once the projects concluded, Retro had no pending
requests for additional employees from Green JobWorks,
and at the time of the hearing, the parties did not have
any pending joint bids for future work. However, Retro
had other projects that would continue beyond July and
there was no evidence that Green JobWorks would cease
doing business in the area.
Over the past 5 years, Green JobWorks has provided
labor to Retro on more than 10 projects and possibly
more than 20. At the hearing, Retro President Robert
Gurecki testified that he was satisfied with Green
JobWorks’ services, had not experienced any problems
with Green JobWorks, and had no reason to believe that
he would terminate the relationship. From May 2013 to
May 2014, Green JobWorks and Retro operated under a
lease of services agreement. Although that agreement
has expired, the two companies continue to operate es-
sentially in the same manner, described below.
When Retro needs temporary labor, Gurecki contacts
Green JobWorks and requests a certain number of labor-
ers. Green JobWorks recruits and hires employees.
Consistent with the parties’ expired contract, Green
JobWorks prescreens and drug tests each applicant, pro-
vides safety training, ensures that asbestos abatement
laborers have current EPA AHERA certification and
have passed a physical exam, and represents that all em-
ployees are qualified to perform the services. Addition-
ally, Green JobWorks performs background checks and
administers safety and general knowledge tests to appli-
cants for demolition positions. Green JobWorks main-
tains a database of employees and assigns employees to
project sites based on Retro’s need. Green JobWorks
determines the rate of pay for each position and issues
employee paychecks. Green JobWorks also provides the
employees with personal protective equipment.

1 All dates are in 2015 unless otherwise noted.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the project site, Retro’s superintendent determines
the sequence of work, oversees the work, and directs the
day-to-day activities of both Retro’s solely employed
employees and those employees leased to Retro by Green
JobWorks. Retro’s foreman provides more detailed in-
structions. Retro determines the start and end times of
breaks, and Retro is responsible for keeping track of the
employees’ hours. Retro also provides the necessary
equipment to perform the assigned work on site.
Green JobWorks’ field supervisor is on site some days
(he visits all project sites). He ensures that employees
are present, handles concerns regarding particular em-
ployees, communicates with the office, and manages
injuries and near misses. Green JobWorks is responsible
for disciplining and terminating employees. However, if
Retro is unsatisfied with an individual’s performance, it
can request a replacement, and Green JobWorks Presi-
dent Lazaro Lopez testified that Green JobWorks would
acquiesce to Retro’s request. (At the time of the hearing,
Retro had not exercised this right in the previous 6
months.) Green JobWorks may consult with Retro when
reassigning employees to other sites.
II. REGIONAL DIRECTOR’S DECISION
In a decision dated June 26, and relying primarily on
the Board’s decision in Davey McKee Corp., 308 NLRB
839 (1992), the Regional Director dismissed the petition
because he found that Retro and Green JobWorks met
their burden of establishing an imminent cessation of
operations. The Regional Director observed that the two
current projects would be completed by mid-July, and
thus all the employees working for the alleged joint-
employer entity would be laid off within a month. The
Regional Director recognized that both companies would
individually remain ongoing businesses, that Retro and
Green JobWorks had worked together on more than 10
projects over the past 5 years, that there was no evidence
demonstrating a fundamental change in the nature of
their operations, and that Retro had other projects that
would not cease in July. However, the Regional Director
found that the alleged joint entity had no other ongoing
projects, that there was no evidence that Retro contem-
plated using Green JobWorks as a source of temporary
labor in the future, that Retro uses the labor services of
other leasing companies, and that Retro’s and Green
JobWorks’ agreement had expired. The Regional Direc-
tor dismissed the petition, finding insufficient evidence
to establish that the petitioned-for unit at the alleged joint
employer entity would exist beyond mid-July.
Although the Regional Director found it unnecessary
to decide whether Retro and Green JobWorks are joint
employers because of his finding of an imminent cessa-
tion of operations, the Regional Director stated that
“[t]he evidence in the record presents a colorable claim
of a joint employer relationship” under TLI, Inc., 271
NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir.
1985), and Laerco Transportation, 269 NLRB 324
(1984).2 The Regional Director explained that Green
JobWorks “is responsible for matters such as recruiting,
hiring, disciplining, terminating, setting employee wage
rates, paying employees’ wages, determining which pro-
jects employees are assigned to, and transferring em-
ployees to different projects.” As for Retro, the Regional
Director found that it “determines how many of the
leased workers from Green JobWorks will work on spe-
cific projects, the start and end times of breaks, and when
and what work the worker performs.” The Regional Di-
rector also noted that there was “some record evidence
that Retro determines how workers perform their duties”
and that both Retro and Green JobWorks provide certain
equipment to the employees.
III. THE PARTIES’ POSITIONS
The Petitioner asserts that the evidence does not
demonstrate an imminent cessation of operations, but
rather shows two actively operating companies with a
reasonable expectation of future work together based on
numerous joint projects over the past 5 years. Addition-
ally, the Petitioner argues that the imminent cessation of
operations doctrine has never previously been applied to
ongoing businesses that will remain active within the
geographic area of the petitioned-for unit. Moreover, the
Petitioner contends that representation elections involv-
ing leased employees in the construction industry will be
virtually impossible if the Regional Director is affirmed
because construction projects are of limited duration.3
On the other hand, Green JobWorks argues that the
Regional Director properly found an imminent cessation
of operations. Green JobWorks asserts that the fact that
the two Employers had worked together in the past does
not negate their showing of an imminent cessation of
bargaining-unit work. Green JobWorks urges the Board
to “refrain from entertaining such a major change in its
longstanding application of Davey McKee.” Further,
Green JobWorks notes that the Petitioner could have
sought (and could still seek) to represent a unit of Green
JobWorks’ employees (rather than a unit of employees
jointly employed by Green JobWorks and Retro), and

2 The Board subsequently overruled these cases in BFI Newby Island
Recyclery, 362 NLRB No. 186, slip op. at 16 (2015).
3 We find no merit to the Petitioner’s remaining assertions. First, the
Regional Director did, in fact, place the burden of proof on the Em-
ployers. Second, the Regional Director did not rely solely on the Em-
ployers’ testimony; the Regional Director also relied on the scheduled
reopening dates of the schools.
RETRO ENVIRONMENTAL., INC./GREEN JOBWORKS, LLC 3
thus its employees will not be stripped of their Section 7
rights if the Regional Director is affirmed.
IV. ANALYSIS
A. Retro and Green Jobworks are Joint Employers of the
Employees in the Petitioned-for Unit.
In BFI Newby Island Recyclery, 362 NLRB No. 186,
slip op. at 15 (2015), the Board held that “two or more
entities are joint employers of a single work force if they
are both employers within the meaning of the common
law, and if they share or codetermine those matters gov-
erning the essential terms and conditions of employ-
ment.” When applying this standard, the Board “consid-
er[s] the various ways in which joint employers may
‘share’ control over terms and conditions of employment
or ‘codetermine’ them . . . .” Id. The Board no longer
requires that a joint employer exercise the authority to
control employees’ terms and conditions of employment
“and do so, directly, immediately, and not in a ‘limited
and routine’ manner.” Id., slip op. at 15–16. Rather, it is
sufficient that the joint employer possess the authority.
Id. Furthermore, the Board continues to adhere to its
inclusive approach in defining essential terms and condi-
tions of employment. Id., slip op. at 15. Thus, a joint
employer relationship may be established by showing
that the putative joint employer has authority over essen-
tial terms such as “hiring, firing, discipline, supervision,
[or] direction,” as well as “wages and hours.” Id. “Other
examples of control over mandatory terms and condi-
tions of employment found probative by the Board in-
clude dictating the number of workers to be supplied;
controlling scheduling, seniority, and overtime; and as-
signing work and determining the manner and method of
work performance.” Id. (internal footnotes omitted).
For the reasons set forth below, we find that Retro and
Green JobWorks are joint employers of the employees in
the petitioned-for unit because they share and codeter-
mine essential terms and conditions of employment for
the employees in the petitioned-for unit. See BFI, 362
NLRB No. 186, slip op. at 18.4
Although Green JobWorks is primarily responsible for
hiring, assigning, disciplining, and terminating employ-
ees, Retro exercises control over some of these terms and

4 We apply the standard set forth in BFI because the “established
presumption in representation cases like this one is to apply a new rule
retroactively.” BFI, 362 NLRB No. 186, slip op. at 2. We also note
that Retro and Green JobWorks are employers within the meaning of
the common law. In the words of the Restatement (Second) of Agency,
§ 220(1), the petitioned-for employees are “employed to perform ser-
vices in the affairs” of Green JobWorks and Retro and “with respect to
the physical conduct in the performance of the services” are “subject to
[Green JobWorks’ and Retro’s] control or right to control.” See id.,
slip op. at 18, fn. 96.
conditions of employment, as well. Regarding hiring,
Green JobWorks recruits employees, prescreens them,
performs drug tests and background checks, provides
safety training, tests demolition employees’ knowledge
and safety, and ensures that asbestos abatement laborers
are EPA AHERA certified and have passed a physical
exam. Nonetheless, similar to the user employer in BFI,
Retro has a role in “codetermining the outcome of the
hiring process” by virtue of the parties’ expired agree-
ment (as noted above, the parties continue to operate
essentially consistent with the agreement). See id. The
agreement imposes conditions on whom Green
JobWorks can hire, including requirements that employ-
ees must be prescreened, drug-tested, and qualified to
perform the services; must have completed safety train-
ing; and asbestos abatement laborers must have EPA
AHERA certification and have passed a physical exam.
Regarding assignment, Green JobWorks assigns em-
ployees to project sites, but Green JobWorks may consult
with Retro when deciding to reassign an employee to
another project site. As for discipline and firing, Green
JobWorks can remove an employee from a project site
and from its database of workers. However, as in BFI,
user-employer Retro retains the right to request a re-
placement if it is unsatisfied with any employee. Alt-
hough Retro had not exercised this right in the 6 months
prior to the hearing, Green JobWorks’ president testified
that Green JobWorks would acquiesce to Retro’s request.
See id., slip op. at 18 (finding user employer’s unquali-
fied right to “discontinue the use of any personnel” that
the supplier employer has assigned supports a finding of
joint employer status). Finally, Green JobWorks deter-
mines the rate of pay, pays wages, and provides benefits.
Retro is primarily responsible for determining the
number of workers to be supplied, determining employee
hours and scheduling, and supervising the employees on
the job. As in BFI, Retro alone determines the number
of workers to be supplied by Green JobWorks. See id.,
slip op. at 19. At the project sites, Retro’s superintendent
creates the sequence of work and supervises and directs
the day-to-day activities of all employees, and Retro’s
foreman provides instructions. Green JobWorks’ field
supervisor is onsite only some of the time because he
visits all Green JobWorks’ sites, and his supervisory role
is limited to ensuring that employees are present, han-
dling concerns regarding particular employees, com-
municating with the office, and managing injuries and
near misses. Thus, as in BFI, Retro “makes the core
staffing and operational decisions that define all employ-
ees’ work days.” See id. Additionally, Retro exercises
some control over hours and scheduling because it de-
termines the start and end times for breaks, tracks em-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees’ hours, and reports them to Green JobWorks.5
See id., slip op. at 18–19 (noting that break times consti-
tute a fundamental working condition and finding that
requirement that employees obtain signature of user em-
ployer attesting to hours worked supported a finding of
joint employer status).6
In sum, as demonstrated above, each employer has its
primary areas of responsibility in the joint relationship—
Green JobWorks in the hiring, firing, and assigning of
employees to project sites, and Retro in the day-to-day
supervision of the job—with each of the employers able
to influence some of the other’s decisions. Between
them, they control all of the employees’ employment
terms. Green JobWorks and Retro thus share or code-
termine the employees’ essential terms and conditions of
employment and we find them to be joint employers.7
B. The Employers Failed to Prove that Cessation of
Their Joint Operations is Both Imminent and Definite.
The Act directs the Board, upon the filing of a repre-
sentation petition, to investigate whether a question of
representation exists, including by holding an appropriate
hearing. 29 U.S.C. § 159(c)(1). It further directs, “If the
Board finds . . . that such a question of representation

5 The project’s general contractor determines the overall schedule for
each project site.
6 The fact that Retro and Green JobWorks both provide equipment to
the employees also supports a finding that they are joint employers.
For example, Retro and Green JobWorks share in the provision of
employees’ safety gear. Retro provides Tyvek suits, Green JobWorks
provides respirators, hard hats, safety vests, safety glasses, gloves, and
both employers provide respirator filters.
7 We reject our dissenting colleague’s criticism that we should not
determine whether Retro and Green JobWorks are joint employers
because their relationship on future projects could change. As our
colleague must concede, the Employers’ relationship at the time of the
hearing was representative of their relationship for at least 2 years prior
to the hearing. From May 2013 to May 2014, the Employers’ relation-
ship was memorialized in a contract. At the hearing, more than a year
after that contract had expired, the presidents of both companies testi-
fied that the Employers continued to operate essentially consistent with
its terms. Thus, although there may be no contractual “guarantee” that
the Employers’ future operations will continue in a like manner, neither
Employer joins our colleague in suggesting that their relationship will
change.
Furthermore, even if the Employers’ relationship were altered on fu-
ture projects, certain key aspects of their relationship will likely remain
stable. For example, while Green JobWorks, as the supplier employer,
will retain primary responsibility for hiring, assigning employees to
project sites, and firing, Retro will assuredly continue to dictate the
number of workers to be supplied by Green JobWorks, continue to
impose conditions on Green JobWorks’ hiring to ensure that the work-
ers supplied are adequately trained and qualified, and continue to retain
the right to request a replacement if it is unsatisfied with a Green
JobWorks-supplied employee. Therefore, given the distinct functions
and areas of responsibility of each of the Employers, it is highly doubt-
ful that the Employers’ relationship on future projects could change in
such a manner that would render them no longer joint employers of the
employees in the petitioned-for unit.
exists, the Board shall direct an election . . . and certify
the results thereof.” Id. The Board has recognized a
narrow exception to this statutory mandate, limited to
circumstances in which it is reasonably certain that con-
ducting an election will serve no purpose: it will dismiss
an election petition when cessation of the employer’s
operations is imminent, such as when an employer com-
pletely ceases to operate, sells its operations, or funda-
mentally changes the nature of its business. See, e.g.,
Hughes Aircraft Co., 308 NLRB 82, 83 (1992); Martin
Marietta Aluminum, 214 NLRB 646, 646–647 (1974);
Cooper International, 205 NLRB 1057, 1057 (1973).
The party asserting an imminent cessation of operations
bears the burden of proving that cessation is both immi-
nent and definite. Hughes Aircraft Co., 308 NLRB at 83;
Martin Marietta Aluminum, 214 NLRB at 647. The
Board requires concrete evidence, such as announce-
ments of business closure to the public and the employ-
ees, termination of employees, or other evidence that the
employer has definitively determined the sale, cessation,
or fundamental change in the nature of its operations.
Hughes Aircraft Co., 308 NLRB at 83; Martin Marietta
Aluminum, 214 NLRB at 646–647. The Board will not
dismiss an election petition based on conjecture or uncer-
tainty concerning an employer’s future operations, an
employer’s contention that it intends to cease operations
or reduce its workload sometime in the future, or evi-
dence of cessation that is conditional or tentative. See
Canterbury of Puerto Rico, Inc., 225 NLRB 309 (1976).
Contrary to the Regional Director, we find that the
Employers failed to meet their burden of proving an im-
minent cessation of their joint operations. In dismissing
the petition, the Regional Director relied principally on
Davey McKee Corp., 308 NLRB 839, 840 (1992).
There, the Board found that no useful purpose would be
served by holding an election where the employer’s two
construction projects were scheduled to end within 29
days, the employer had no ongoing projects within the
geographic area, and the employer had not bid on future
projects. By contrast, in a companion case, Fish Engi-
neering & Construction Partners, Ltd., 308 NLRB 836
(1992), the Board found no imminent cessation of opera-
tions where the employer had completed four projects
within the past year, was engaged in two projects at the
time of the hearing, and had an outstanding bid in the
same geographic area, even though the current projects
were to end in less than 2 months. 308 NLRB at 836.
The Fish Engineering Board distinguished Davey
McKee, explaining that the uncontradicted findings of the
Regional Director in that case indicated that the employ-
er’s operations would imminently cease and all employ-
ees would be terminated. Id. By contrast, the Board
RETRO ENVIRONMENTAL., INC./GREEN JOBWORKS, LLC 5
found that a useful purpose would be served by conduct-
ing an election in Fish Engineering because it was un-
disputed that the employer had worked on several recent
projects in the area and had bid on future work within the
scope of the petitioned-for unit. Id. Ultimately, the
Board rejected the Regional Director’s finding that “it
was speculative as to whether the [e]mployer would se-
cure additional work within the geographic boundaries of
the petitioned for unit.” Id. See also S. K. Whitty & Co.,
304 NLRB 776 (1991) (directing election where employ-
er had no commitments for future work, but planned to
bid and would remain in the geographic area).8
The present case is unlike most cases in which the
Board has dismissed a petition based on imminent cessa-
tion of operations because Retro and Green JobWorks
are not ceasing to operate, nor are they selling their oper-
ations, fundamentally changing the nature of their busi-
nesses, or moving. See, e.g., Martin Marietta Aluminum,
214 NLRB at 646–647; Hughes Aircraft Co., 308 NLRB
at 83; Cooper International, Inc., 205 NLRB 1057, 1057
(1973). Rather, Retro and Green JobWorks will continue
to operate in the geographic area. Retro will continue to
perform demolition and asbestos abatement services and
Green JobWorks will continue to provide laborers to
perform these services. The fact that Retro and Green
JobWorks’ two projects were, at the time of the hearing,
scheduled to end shortly does not outweigh those consid-
erations. Unpredictability and projects of limited dura-
tion are typical in the construction industry. See Clem-
ent-Blythe Cos., 182 NLRB 502 (1970). Additionally,
unlike in Davey McKee Corp., 308 NLRB at 840, where
the employer had no ongoing projects within the geo-
graphic area, at the time of the hearing in this case, Retro
had other projects that would continue beyond July.9

8 This aspect of S. K. Whitty remains good law despite the Board’s
subsequent overruling of the case on other grounds in Steiny & Co.,
Inc., 308 NLRB 1323, 1327 fn. 17 (1992).
9 Contrary to our dissenting colleague, Davey McKee, 308 NLRB at
840, S. K. Whitty, 304 NLRB at 777, and Fish Engineering, 308 NLRB
at 836, do not stand for the proposition that a petition must be dis-
missed if there is no evidence of a joint bid for additional work. Ra-
ther, in each of those cases, the employer’s bid or lack thereof was
relevant to the question whether the employer would continue to oper-
ate in the geographic area. Here, it is undisputed that both Retro and
Green JobWorks will continue performing demolition and asbestos
abatement work in the Washington, DC area. Furthermore, given the
Employers’ lengthy history of collaboration, there is sufficient evidence
of a likelihood that Retro and Green JobWorks will continue to work
together on future projects. The dissent fails to appreciate that the
Employers have the burden of proving that cessation of their joint oper-
ations is definite and imminent. Here, the Employers have failed to
meet that burden. Compare Martin Marietta Aluminum, 214 NLRB at
646–647 (dismissing petition where employer was imminently closing
its plant); Hughes Aircraft Co., 308 NLRB at 83 (same where employer
was fundamentally changing the nature of its business).
Significantly, there is no evidence that the Employers
intended to discontinue their working relationship or that
they would not continue to work together in the future.
Although, at the time of the hearing, Retro and Green
JobWorks had no current projects or bids for future pro-
jects together, Green JobWorks had provided Retro with
laborers on more than 10 projects (possibly more than
20) over 5 years. Moreover, Retro’s president testified
that he was satisfied with Green JobWorks’ services and
did not envision terminating the relationship. Given the
evidence of a successful working relationship over time,
this case is more like Fish Engineering than Davey
McKee. In short, we find that the Employers have failed
to meet their burden of proving that a cessation of their
joint operations is imminent and definite.
Accordingly, we reverse the Regional Director’s find-
ing of an imminent cessation of the employers’ joint
business operations.
ORDER
The Regional Director’s dismissal of the petition is re-
versed. We reinstate the petition and remand the case to
the Regional Director for further appropriate action.
Dated, Washington, D.C. August 16, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
I would affirm the Regional Director’s dismissal of the
petition based on imminent cessation of operations. The
record establishes that the alleged joint-employer pro-
jects at which the petitioned-for unit employees worked
would end in mid-July 2015, just 2 or 3 weeks after the
Regional Director issued his decision on June 26, 2015.
No evidence supports a conclusion that Retro Environ-
mental, Inc. (Retro) and Green JobWorks, LLC (Green
JobWorks) will work together on future projects at all, let
alone that they will do so in a manner that will render
them joint employers, which in any event would require
a fact-specific inquiry under BFI Newby Island Recyclery
(BFI).1 My colleagues’ conclusion to the contrary con-

1 362 NLRB No. 186, slip op. at 15–16 & fn. 81 (2015) (emphasiz-
ing the fact-specific nature of joint-employer determinations and the
“broad, inclusive approach” to making those determinations). My
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stitutes rank speculation. The present record contradicts
my colleagues’ conclusion that future Retro/ Green
JobWorks projects will occur, and it certainly does not
permit the Board to predict what form they might take,
and whether they will involve sufficient commingled
authority to result in joint-employer status using the test
established in BFI.
The Regional Director found, and my colleagues do
not dispute, that the two projects for which Green
JobWorks was providing laborers to Retro at the time of
the hearing—the DC Scholars Charter School project and
the Powell Elementary School project—were scheduled
to be completed by mid-July 2015.2 The Regional Direc-
tor also found that Retro and Green JobWorks did not
have any other ongoing projects and did not contemplate
any future work together. After the Charter School and
Elementary School projects ended, Retro did not have
any pending requests for additional employees from
Green JobWorks, nor did Retro and Green JobWorks
have any pending joint bids for future work.
Nonetheless, my colleagues find the Employers failed
to prove an imminent cessation of operations because (i)
Retro and Green JobWorks will each continue to operate
in the geographic area, (ii) Retro had other projects that
would continue beyond July, (iii) Green JobWorks had
provided Retro with laborers on more than 10–20 pro-
jects over the past 5 years, and (iv) Retro’s president
testified he was satisfied with Green JobWorks’ services
and had no reason not to use Green JobWorks in the fu-
ture.
I agree that the record shows the individual operations
of Retro and Green JobWorks would separately continue
after mid-July 2015. However, the petition in this case
names Retro and Green JobWorks as joint employers.
Thus, only the two alleged joint-employer operations are
relevant when analyzing the question of imminent cessa-
tion here. Even assuming that Retro and Green

colleagues find that Retro and Green JobWorks (the Employers) are
joint employers of the employees in the petitioned-for unit. Because I
would dismiss the petition based on imminent cessation of operations, I
find it unnecessary to reach or pass on the joint-employer issue. More-
over, as explained below, any determination of Retro’s and Green
JobWorks’ joint-employer status on any possible future projects they
might work on would depend on the specific facts and circumstances of
those jobs (if any) and cannot be determined in advance. See id. Thus,
I believe my colleagues pile speculation on top of speculation. They
speculate that Retro and Green JobWorks will work on future projects
together, and they further speculate that on those speculative future
jobs, they will also be joint employers of Green JobWorks–supplied
employees.
2 The presidents of Retro and Green JobWorks each testified, con-
sistently and without contradiction that the two projects had to be com-
pleted by mid-July because both project sites were schools that were
scheduled to reopen for classes in August 2015. This testimony was
corroborated by the schools’ scheduled opening dates.
JobWorks might be considered joint employers on the
Charter School and Elementary School projects, the Re-
gional Director correctly found that the joint operations
of Retro and Green JobWorks would cease in a matter of
2 or 3 weeks following the issuance of his decision when
these two projects ended. Although the laborers would
remain employees of Green JobWorks, they would no
longer be jointly employed by Green JobWorks and Ret-
ro (assuming, for purposes of this analysis, that they had
been jointly employed).
Accordingly, I believe the Regional Director properly
dismissed the petition in reliance on Davey McKee
Corp., 308 NLRB 839 (1992) (dismissing petition where
employer’s two construction projects would be complet-
ed in approximately 1 month, and employer had no ongo-
ing projects within geographic scope of petitioned-for
unit and no projects under bid). While Retro and Green
JobWorks had worked together on several recent pro-
jects, there is no evidence of any action by either Em-
ployer inconsistent with an imminent cessation finding,
such as a Retro/Green JobWorks joint bid or an outstand-
ing request by Retro for Green JobWorks employees. On
this basis, the cases upon which my colleagues principal-
ly rely are distinguishable. See Fish Engineering &
Construction Partners, Ltd., 308 NLRB 836, 836 (1992)
(finding election would serve useful purpose where, alt-
hough employer’s two current projects were scheduled to
end in less than 2 months, employer had worked on sev-
eral recent projects in the geographic area and had bid on
another project for the same company with which it was
currently under contract); S. K. Whitty & Co., 304 NLRB
776, 777 (1991) (directing election even though employ-
er had no successful bids or commitments for future
work, where employer’s general manager testified em-
ployer was planning to bid on future work and had al-
ready prepared bids for some projects).
Additionally, although Retro had other projects that
would continue beyond July, and Retro’s president testi-
fied he did not preclude the possibility of working with
Green JobWorks in the future, it is entirely speculative
(i) whether Retro would need additional employees for
its other projects, and (ii) even if Retro would need addi-
tional employees, whether it would select Green
JobWorks as opposed to one of the three other temporary
staffing agencies with which Retro also contracts. See
Davey McKee, 308 NLRB at 840 (rejecting as conjectur-
al petitioner’s contention that employer may secure addi-
tional work, even though it appeared employer would bid
additional work if opportunity arose); Martin Marietta
Aluminum, Inc., 214 NLRB 646, 647 (1974) (dismissing
petition where employer was in process of closing plant
RETRO ENVIRONMENTAL., INC./GREEN JOBWORKS, LLC 7
and had no plans or prospects for sale of facility as ongo-
ing business).3
Moreover, even if Retro and Green JobWorks work
together on future projects, it is entirely speculative
whether they will constitute a joint employer of employ-
ees who might be supplied by Green JobWorks. Here,
my colleagues—finding that Retro and Green JobWorks
are joint employers of the employees in the petitioned-for
unit—rely on the parties’ description of how they operat-
ed with respect to the two projects that were about to
terminate.4 However, the joint employer-analysis is
highly fact-specific. See BFI, 362 NLRB No. 186, slip
op. at 16 (“Issues related to the nature and extent of a

3 I do not, as my colleagues suggest, contend that Davey McKee, S.
K. Whitty, or Fish Engineering stand for the proposition that a petition
must be dismissed if there is no evidence of a joint bid for additional
work. Rather, a joint bid or lack thereof is relevant to the question of
whether a joint employer will continue to operate as a joint employer.
As my colleagues note, in Davey McKee, S. K. Whitty, and Fish Engi-
neering, the single employer’s bid or lack thereof was relevant to the
question of whether that single employer would continue to operate in
the geographic area. In this case, the petition names Retro and Green
JobWorks as joint employers. Thus, as explained in the text, the rele-
vant employer when analyzing imminent cessation here is the alleged
Retro and Green JobWorks joint-employer entity. Accordingly, the
fact that Retro and Green JobWorks each individually will continue
their separate operations after the Charter School and Elementary
School projects end does not amount to evidence that their alleged
joint-employer operations will continue. Nor does the fact that the
Employers worked together in the past establish that they will work
together in the future, and my colleagues’ rank speculation that there is
a “likelihood” they will do so is just that—rank speculation. See Mar-
tin Marietta Aluminum, 214 NLRB at 647 (rejecting Regional Direc-
tor’s finding of some chance of continuity of employment based on
plant manager’s response to hypothetical questions and finding likeli-
hood of any continuity of employment “purely speculative”); Hughes
Aircraft Co., 308 NLRB 82, 82 (1992) (dismissing petition seeking to
represent security department employees because of employer’s immi-
nent cessation of its guard operations through subcontracting and be-
cause of speculativeness of petitioner’s contention that subcontractors
would become joint employers with employer).
4 My colleagues apply the standard recently announced in BFI, su-
pra. As explained in the BFI dissenting opinion jointly authored by
former Member Johnson and me, I would adhere to precedent requiring
proof that a putative joint employer “meaningfully affects matters relat-
ing to the employment relationship such as hiring, firing, discipline,
supervision, and direction,” Laerco Transportation, 269 NLRB 324,
325 (1984), and does so directly and immediately, Airborne Express,
338 NLRB 597, 597 fn. 1 (2002). Moreover, where joint-employer
status is based on a user employer’s supervision and direction of em-
ployees supplied by a supplier employer, I would adhere to precedent
that holds limited and routine supervision and direction insufficient to
support a joint-employer finding. See AM Property Holding Corp., 350
NLRB 998, 1001 (2007) (explaining that supervision is “limited and
routine where a supervisor’s instructions consist primarily of telling
employees what work to perform, or where and when to perform the
work, but not how to perform the work”). Again, I express no views as
to whether the petitioned-for employees were jointly employed by
Retro and Green JobWorks on the DC Scholars Charter School and
Powell Elementary School projects.
putative joint-employer’s control over particular terms
and conditions of employment . . . are best examined and
resolved in the context of specific factual circumstanc-
es.”). Even if Retro and Green JobWorks engage in fu-
ture projects together, the “specific factual circumstanc-
es” of any future projects are unknown. Id. Indeed, the
lease-of-services agreement between Retro and Green
JobWorks expired in May 2014, and although the agree-
ment provided that the parties could extend its term by
mutual written consent, the agreement had not been re-
newed as of the date of the hearing. Although the Em-
ployers may have handled the Charter School and Ele-
mentary School projects in a manner “essentially con-
sistent” with their expired agreement, they were not
bound to do so, and there is no guarantee that they will
do so in the future.5 Further, there is no evidence of any
joint bid or request by Retro for Green JobWorks em-
ployees for future projects. Compare BFI, above, slip
op. at 18–20 (finding joint employer status based in part
on provisions of temporary labor services agreement,
which was effective at time of hearing). It is speculative
whether Retro and Green JobWorks will ever work to-
gether again, and even assuming they do, it is speculative
whether they will be joint employers of employees Green
JobWorks provides to Retro for work on any future pro-
jects. See Hughes Aircraft Co., above at 82.6

5 Indeed, it appears that Retro and Green JobWorks deviated from
the expired agreement in practice. For example, while the agreement
provided that Green JobWorks is responsible for supervising and con-
trolling the laborers it leases to Retro (with Retro to provide and coor-
dinate their workload and scheduling of work), the Regional Director
found that Retro’s superintendent oversaw the work of the Green
JobWorks employees at the Charter School project site.
6 My colleagues reinstate the petition because they say, with virtual-
ly no record support, that (i) there is a “likelihood” the Employers will
work together again; (ii) ”neither Employer . . . suggest[s] that their
relationship [would] change” in the event the two entities work together
(even though there are no contractual commitments that would preclude
such changes in any future relationship); and (iii) “certain key aspects
of their relationship will likely remain stable,” and therefore they would
still be joint employers, even if Retro and Green JobWorks have future
combined projects that involve a different relationship than has existed
in the past. To state the obvious, my colleagues have no way of know-
ing whether Retro and Green JobWorks will ever work together again
in the first place, let alone how they will do so if they do so. At the
time of the hearing, the Employers had no other joint projects besides
the two that were about to end, no joint bids, no plans to submit any
joint bid, and no contract binding them to work together again or speci-
fying the terms of any future working relationship.
Although I do not pass on the Employers’ joint-employer status on
the Charter School and Elementary School projects, I believe that my
colleagues here, both of whom participated in the BFI majority, are
now misapplying or repudiating key aspects of their own decision in
that case. In BFI, my colleagues stated that “[i]ssues related to the
nature and extent of a putative joint-employer’s control over particular
terms and conditions of employment . . . are best examined and re-
solved in the context of specific factual circumstances,” and that “the
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board has held that meaningful bargaining is un-
likely to occur where an employer’s operations will cease
shortly after an election. See Clement-Blythe Cos., 182
NLRB 502, 502–503 (1970) (directing election where
waiting until full employee complement was achieved
“might well result in bargaining for only a very short
duration, with the project completed before any meaning-
ful results could ensue”). The evidence in the record
indicates the alleged joint operations of Retro and Green
JobWorks ceased a year ago, and my colleagues’ finding
that the joint operations would resume in the future and
would constitute joint-employer operations when they do

burden of proving joint-employer status rests with the party asserting
that relationship.” BFI, 362 NLRB No. 186, slip op. at 16, 18. Here,
the Petitioner has this burden of proof, and it failed to present any evi-
dence of the Employers’ working relationship on future projects (nor
could it have, given that at the time of the hearing no future projects
had been bid or contracted for or were even contemplated). Instead of
finding the Petitioner failed to meet its burden of proof based on an
analysis of the record, my colleagues simply assert that “certain key
aspects” of the Employers’ relationship “will likely remain stable,” and
they conclude that “it is highly doubtful that the Employers’ relation-
ship on future projects could change in such a manner that would ren-
der them no longer joint employers of the employees in the petitioned-
for unit.” In my view, it is irreconcilable with BFI and indefensible
based on any reading of the record to find that the Petitioner has met its
burden to prove (i) that Retro and Green JobWorks will be joint em-
ployers on future projects, even though it is impossible to examine the
“specific factual circumstances” of their working relationship on those
future projects (which may never happen), BFI, supra, or (ii) that a
“likelihood” exists that Retro and Green JobWorks will work together
again and that if and when they do so, “certain key aspects of their
relationship will likely remain stable,” thereby resulting in joint-
employer status.
so is doubly speculative.7 If the same parties might par-
ticipate in future projects together, which might give rise
to joint-employer status as to employees who work in the
same or similar positions as those described in the peti-
tion, this does not make it appropriate to conduct an elec-
tion when operations involving the petitioned-for unit
were to cease imminently. In these circumstances, it is
appropriate to dismiss the petition, especially given
that—as the Regional Director indicated here—the peti-
tion may be reinstated upon the Petitioner’s motion if
Retro and Green JobWorks resume working on projects
together involving the same petitioned-for unit.
For these reasons, consistent with established Board
law, I believe the Regional Director properly concluded
it was inappropriate to conduct an election in the peti-
tioned-for unit. I would affirm the Regional Director’s
finding of an imminent cessation of the Employers’ joint
business operations and dismiss the petition.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. August 16, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

7 I agree that projects in the construction industry are often limited in
duration. Thus, conducting an election may serve a useful purpose
even though the project on which the petitioned-for employees are
working is scheduled to be completed shortly where there is persuasive
evidence that the employer will obtain additional unit work. However,
such evidence is missing from this case.