Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer. In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur. Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required. Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.
The case involved a sheet metal workers union that sought to represent construction workers, including those employed both directly by Miller & Anderson Inc. and those supplied to provide temporary labor to it by Tradesman International. Under the existing standard at the time the petition was filed, both the employer and the staffing agency needed to consent to the unit, and they did not. The union challenged this requirement and the NLRB, in its continuing goal to include more “jointly employed” workers in unionization efforts, overturned its existing standard from Oakwood Care Center that required the employers’ consent.
The Board held that the only consideration is whether the direct employees and the jointly-employed workers who work just for that same employer share a “community of interests” under the traditional factors used in that analysis. Consent of the employers is no longer required. In announcing the ruling, the Board stated that where a unit such as this elects union representation, a “user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. . . . However, [a user employer] will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”
This case follows on the heels of another recent Board case, known as Browning-Ferris, that opened up the standard for determining a staffing agency worker is a “joint employee” of the business customer, which makes it easier for unions to bring both staffing agencies and their user employers to the bargaining table. This has been a clear trend of the Board under the Obama Administration. A member of the Board who dissented in yesterday’s decision noted that precise goal and its real consequences. Board Member Philip Miscimarra’s dissent said the decision “substantially enlarge[s]” the already expanded joint employer world created in the Browning-Ferris decision, and he believes that this most recent Board decision will only contribute to further confusion for parties about whether a proposed unit such as the one in this case will be certified and how bargaining will occur with such a unit if it elects union representation. From his perspective, and that of most employers, this confusion benefits no one — not the employers, not the workers, and not even the unions who hope to represent such workers.