NLRB Makes it Easier for Temporary and Contingent Workers to Join Unions

Marianne Robbins

On July 11, 2016, in Miller & Anderson, Inc., 364 NLRB No. 39 the National Labor Relations Board (“NLRB”) returned to its earlier decisions that employees solely employed by one employer and those jointly employed by that “user” employer and a “supplier” employer can be represented in the same bargaining if they share a community of interest without the employers’ consent. This decision, by a three member majority, will allow permanent and contingent employees who work side by side to join in one collective bargaining unit and negotiate together with the employer in charge of their workplace.

Section 9(b) of the Labor Relations Act (‘NLRA”) addresses determination of bargaining units “which shall be the employer unit, craft unit, plant unit or subdivision thereof.”   29 USC §159(b). The dissenting Board member in Miller & Anderson argued that the unit should be considered a  multi-employer unit and that the reference to “employer unit” prohibited multi-employer units, unless the employers agreed to them,  The majority however, pointed out that  a unit of employees with one employer and jointly employed by that employer and a supplier employer share a common employer and therefore fit within the definition of “the employer unit.” By contrast a true multi-employer unit combines employers which have no contractual relationship to each other and are often competitors and therefore must consent to bargain as one unit.

The majority also found that allowing combined units of employees with one employer and jointly employed workers in the same workplace follows the mandate of Section 9 (b) “to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.”  Contingent workers and their co-workers who are solely employed by the user employer are no longer prevented from joining together for bargaining strength. The decision, however, does not dictate that a unit must include both permanent and contingent employees. Rather the decision leaves “both groups free to organize separately if they would prefer to do so.” The recognition of combined units does not improperly burden employers since employers would have to be involved in bargaining with its sole employees and joint employees if they also were organized in separate bargaining units.

In reaching its decision in Miller & Anderson, the Board returned to the application of the NLRA which had allowed combined units of joint and single employer employees for more than forty years from the 1940’s through the 1980’s. Many of the early cases involved retail stores where employees in one department were jointly employed by the retailer and another company, while employees in other departments were employed only by the retailer, yet all were included in one unit.  Challenges to these units were rejected by at least three circuit courts over the course of many years.

However, in 1990 the Board found a one department unit appropriate because the nurses were jointly employed by the hospital and a professional group, misapplying Greenhoot Inc., 205 NLRB 250 (1973), a case involving a multi employer unit of unaffiliated companies which happened to use the same supplier. For the next decade Lee Hospital was applied to prohibit units which contained both employees of one employer and employees jointly employed by that employer and a supplier employer unless the employers consented to the unit.

In 2000, in M.B. Sturgis, 331 NLRB 1298, the Board returned to its 40 year policy holding that the unit of employees employed only by M.B. Sturgis and temporary employees supervised by M.B. Sturgis but supplied by another company were appropriately in the same unit whether or not the employers consented to the unit. Sturgis also addressed dismissal of a petition to clarify a bargaining unit of Jeffboat Division employees to include temporary employees. The Board did not determine the appropriate unit in that case, but remanded the proceedings to the Regional Director to apply community of interest and accretion principles. Id. at 1306.

Four years later, the Board, now dominated by President Bush appointees, in Oakwood Care Center, 343 NLRB 659 (2004) reversed the Sturgis decision holding that a unit could not encompass employees of one employer and employees jointly employed by that employer and another without the employers’ consent.  Since 2004, until now, the National Labor Relations Board (NLRB) has rejected representation petitions for combined bargaining units including employees of one employer and employees who are jointly employed by that employer and another company, typically a staffing agency.

The NLRB’s return to Sturgis and its earlier precedent, allowing permanent and contingent workers to organize together in one bargaining unit is particularly important now that the use of joint employer arrangements has expanded with the procurement of employees through subcontracting, staffing or contingent employment agencies. This trend was recognized by the Board in its recent decision in Browning-Ferris Industries , 362 NLRB No. 186 (2015) which broadened the definition of a joint employer. Together Miller and Anderson and Browning-Ferris will provide opportunities for contingent workers to exercise their rights to select union representation together with their co-workers who are employed solely by one employer. Where a bargaining unit has been limited to employees of one employer unions may seek to include temporary employees who are jointly employed by user and supplier employers as discussed in Sturgis in relation to the Jeffboat Division UC petition, recognizing that normal principles of community interest and accretion will apply.