The NLRB recently held that temporary employees and regular employees have a right to petition to join a combined bargaining unit, even if the staffing agency and employer object to the formation of the combined unit. In Miller & Anderson, 364 NLRB No. 9 (July 11, 2016), the National Labor Relations Board (“NLRB”) continued its campaign to undermine third-party staffing relationships. The decision reverses the Board’s standard in Oakwood Care Center, 343 NLRB 659 (2004), and returns to the earlier standard of M.B. Sturgis, 331 NLRB 1298 (2000).
The Central Holding of Miller & Anderson
Miller & Anderson authorizes employees of a “supplier” employer (e.g. temporary staffing agency) and a “user” employer (e.g. the temp agency’s client) to petition to join a combined bargaining unit. Under the NLRB’s rationale, a “supplier” employer includes a temporary-worker agency or a contractor that provides labor to another entity. A “user” employer is the entity that contracts with the “supplier” employer to obtain labor services for its business operations. The NLRB’s supplier-user dichotomy implicates a number of common staffing arrangements, including temporary staffing agencies and contracted labor.
Previously, a supplier employer and a user employer could not be shoehorned into the same bargaining arrangement absent mutual consent. The prior rule was based on the reasonable proposition that multi-employer bargaining under the National Labor Relations Act (“NLRA”) cannot be coerced, and is always a matter of employer consent. Unfortunately, the NLRB’s new standard authorizes supplier and user employees to join the same unit, if the petitioned-for unit satisfies the NLRB’s generally lax standards for an “appropriate unit.”
A Major Headache for Employers
Miller & Anderson creates a host of intractable problems for employers forced into multi-employer bargaining. Most notably, and as pointed out by the dissent, the decision forces “non-employer” bargaining in situations where an employer that does not control the terms and conditions of employment for the unit employees will be forced into bargaining over those employees. The decision also creates conflicts between user and supplier employers in regard to bargaining strategy, and the sharing of information with the union representing the combined unit.
The sweep of Miller & Anderson is even more pernicious when combined with the NLRB’s new, lenient standard for joint-employer relationships, as announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015). Under Browning-Ferris, the NLRB can impose a joint-employer relationship after choosing from an “analytical grab bag” of evidentiary factors that may remotely suggest indirect control or incidental collaboration among the two employers. Id. at 26 (dissent). Unfortunately, with Miller & Anderson and Browning-Ferris together, the range of workplace arrangements where the Board will support a combined bargaining unit will be extremely broad.
Considerations for Employers
Miller & Anderson will face challenge in the federal courts by way of petition for review. Resolution by the courts, however, will likely be years away. In the meantime, the NLRB will process election petitions for combined units of shared and user employees. Any employer facing a Miller & Anderson petition can challenge the legitimacy of the NLRB’s new standard in federal court. While such a challenge is unlikely to stall the processing of the election petition, the employer can avoid a bargaining obligation until the NLRB’s new standard for combined units is approved, and enforced, by a federal court of appeals. Employers who provide or utilize either temporary or contracted labor should consult their legal counsel for specific guidance on how to respond to Miller & Anderson.
L. Brent Garrett is a seasoned labor lawyer with 20 years of experience representing employers in complex labor relations matters. Mr. Garrett represents employers across all industries, including construction, healthcare ...
Jonathan Judge advises employers in various labor and employment law matters, including drug testing, mass layoffs (WARN), disparate impact analysis, immigration compliance, trade secrets, privacy, technology in the ...
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