In the much-anticipated Miller & Anderson, Inc., decision, the National Labor Relations Board has reverted to a policy allowing solely employed and jointly employed employees to be represented in the same bargaining unit without employer consent.

The July 11, 2016, decision applies where there are employees who are solely employed by a user employer and employees who are jointly employed by both a user employer and a supplier employer—often a temporary staffing agency. Under the Board's ruling, these two classes of employees may now be represented in a single bargaining unit without either employer's consent, so long as the employees have a community of interest. Where the employees are represented within the same bargaining unit, the user employer and supplier employer are each required to bargain with respect to the terms and conditions of employment over which it possesses the authority to control.

This decision is an about-face from the Board’s last decision on the issue in 2004, and a brief history of the Board’s decisions on this issue shows the inconsistent positions it has taken:

  • From 1935 to 1990, the Board generally found bargaining units could be made up of employees of a single employer and employees of a joint employer.

  • In 1990, the Board's Lee Hospital decision required consent of both employers when a union sought to represent single-employer and joint-employer employees in the same unit.

  • The Board's 2000 M.B. Sturgis decision significantly limited the circumstances under which employer consent was necessary to situations where employers were entirely independent businesses—physically and economically separate, no intermingling of operations, and the employees are not jointly controlled. The decision effectively re-adopted the pre-1990 policy.

  • In 2004, the Board held in Oakwood Care Center that the Sturgis decision was misguided and that employer consent was required.

Twelve years later, the Board has again doubled-back on its reasoning and determined that employer consent is no longer necessary. The decision is especially concerning because the Board's recent decision in Browning-Ferris Industries, which, as noted previously, has made the joint employer standard more likely to be met.

The Miller & Anderson decision is clearly intended to aid unions in their organizing efforts. User employers and supplier employers should determine whether a community of interest exists among their solely and jointly employed employees. If such circumstances exist, it is likely that the solely employed and the jointly employed employees can be combined into a single bargaining unit—with no consent required.

To avoid this result, user employers should take steps to change employment conditions to limit community of interest among the solely employed and jointly employed employees. These steps might include having the two groups perform different types of work requiring different skills and functions, not allowing the two groups to substitute for one another, differentiating their wages and benefits, differentiating their supervision, and exposing them to different working conditions. Both user and supplier employers should carefully review their staffing agreements to limit community of interest and to delineate which entity possesses authority to control various terms and conditions of employment.

All employers should also note that the Board's decision is not necessarily the last word on this issue. The user employer may appeal the Board's decision to a federal Circuit Court of Appeals. Additionally, the decisions have followed along party lines, with the liberal approach surfacing during the Clinton and Obama administrations and the conservative holdings being issued in the Bush administrations. Depending on the results of the November election, the Board could be changing its tune yet again.

Ballard Spahr’s Labor and Employment Group advises employers on all aspects of labor-management relations and represents them in disputes before courts, administrative agencies, and alternative dispute resolution forums.


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