Holland & Knight Attorney Ken Jenero Takes Chicago Landscaping Client to New and "Greener" Heights

Chicago, Ill. – October 23, 2009 – Holland & Knight attorney, Ken Jenero (Chicago), recently achieved a major victory for firm client, Moore Landscapes, Inc., in a dispute over whether "landscapers" or "roofers" have the right to install "green roofs" on Chicago-area construction projects.

On September 30, 2009, the National Labor Relations Board (NLRB) issued a decision upholding Moore Landscapes' assignment of the disputed green roof work to landscape employees represented by Local 150 of the Operating Engineers and Local 703 of the Teamsters, instead of roofing employees represented by the Roofers Union. In so doing, the NLRB recognized and enforced the historical local practice of using skilled landscape employees to install green roofs. The Board also relied on the economy and efficiency achieved by using these employees to perform rooftop landscape projects.

This was a huge win for Moore Landscapes and the Illinois Landscape Contractors Bargaining Association (ILCBA), another Holland & Knight client, which negotiates the landscapers' collective bargaining contracts with Local 150 and Local 703. Approximately 120 landscape construction companies are parties to the ILCBA's contract covering the employees who perform landscape construction work, including the installation of green roofs, throughout the Chicago metropolitan area and Northeastern Illinois. Green roof installation is a growing business due to the general movement toward the use of more environmentally-friendly construction methods and the City of Chicago's commitment to being a "green leader."

The Moore Landscapes dispute related to the installation of "green grid" and "built-up" vegetative roof systems on a new, mixed-used development on South Wells Street. Walsh Construction awarded the green roof installation contract to Moore Landscapes which, in turn, assigned the work to its landscape employees. The Roofers Union attempted to disrupt this work assignment by filing a grievance claiming jurisdiction over the disputed rooftop work for its members. Moore Landscapes responded by petitioning the NLRB to resolve the jurisdictional dispute.

After a three-day hearing, the NLRB rejected the Roofers' jurisdictional claim and affirmed Moore Landscapes' legal right to install the green roof systems with landscape employees represented by Local 150 and Local 703. The NLRB held that Moore Landscapes' work assignment was supported by:

• Local 150 and Local 703's certification as the exclusive collective bargaining representative of Moore's landscape employees;
• Local 150 and Local 703's collective bargaining agreements with the ILCBA, which cover the disputed green roof work;
• Moore's preference to install green roofs with its experienced Local 150 and Local 703 employees and historical practice of assigning green roof work to those employees;
• the area and industry practice of landscape contractors performing green roof work with employees represented by Local 150 and Local 703; and
• the economy and efficiency achieved by using Moore's landscape employees to install the green roofs and perform all of the other landscape construction work on the project.

"The NLRB's decision is a win-win situation for project owners, developers and landscape contractors," said Jenero. "Landscape contractors have years of experience and skill installing and maintaining green roofs, and they can do so most efficiently and cost-effectively." According to Jenero, "the NLRB's decision is particularly significant because it confirmed that the prevailing area and industry practice is for landscape contractors to install green roofs with their Local 150 and Local 703 employees. The Roofers were unable to provide evidentiary support for their claim to the work."

The NLRB's decision bodes well for the ILCBA's efforts to preserve the installation of green roofs for its members and their employees. Jenero subsequently represented another ILCBA member, Pedersen Company, in similar NLRB proceedings addressing the Roofers' competing claims to the installation of green roofs on two Chicago school projects. He expects similar favorable results for the landscape contractor and hopes that these decisions will put and end to the Roofers efforts to undo the well-established area and industry practice.

Jenero is the National Business Development partner for Holland & Knight's Labor, Employment & Benefits Practice Group and co-leader of the Practice Group in the firm's Chicago Office. He is an experienced trial lawyer and business advisor, who has devoted his entire professional career to litigation and client counseling in all areas of labor and employment law. He serves as labor counsel for the ILCBA.