NLRB Continues to Expand Union Influence Over Joint Employment

Okays Joint Employer Bargaining Units Without Consent

July 13, 2016
Legal Update

On July 11, 2016, the National Labor Relations Board overturned its prior position that a joint employer unit of direct and temporary employees required consent from the user and supplier employers before both groups could be included together in an election. 

In Miller & Anderson, Inc., a skilled craftsmen staffing company, Tradesmen International, supplied Miller & Anderson, a building trades contractor, with sheet metal workers for a project in Pennsylvania.  The Sheet Metal Workers Union attempted to organize all sheet metal workers at the Pennsylvania project, including Miller & Anderson direct employees, Tradesmen International temporary employees, and Tradesmen International direct employees.  The Union petitioned the Board for an election with a mixed unit of direct and temporary employees.  The NLRB’s Regional Director dismissed the petition in accord with prior Board precedent because neither Tradesmen International nor Miller & Anderson consented to the unit.

The Board reversed and held that consent of the user employer and the supplier employer was not required before there could be an election in a mixed bargaining unit of direct employees and temporary employees.  In place of the consent requirement, the Board will now apply its traditional community-of-interest test to decide if the unit is appropriate.  Under such a test, the Board will look to a number of factors, including whether the employees:

The new rule in Miller & Anderson, Inc., combined with the Board’s 2015 Browning Ferris decision, could significantly increase the number of joint employer units where temporary workers are used.  Before ordering an election involving a mixed bargaining unit, the Board must determine two things: 1) whether the user employer is a “joint employer,” and 2) whether the proposed unit of direct and temporary employees is appropriate.  The Browning Ferris decision controls the first question and the Miller & Anderson, Inc. decision now controls the latter.

Under these two decisions, an employer with temporary workers may, for example, have to bargain with a mixed unit even if it does not exercise direct control over the temporary employees’ pay or discipline and has not consented to such a mixed bargaining unit.

Please contact Raymond Neusch, Steven McDevitt, or any member of the Labor & Employment Practice Group for further information about this matter.

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