NLRB: Employer Consent Not Required For Unit That Includes Jointly Employed Employees

Last year we told you about the National Labor Relations Board (“NLRB” or “Board”) decision in Browning Ferris Industries which expanded the criteria and the circumstances where employees of two separate employers will be considered joint employees of both employers. We noted that the Browning Ferris decision by itself had limited impact on a union’s ability to organize a bargaining unit that consisted of the jointly employed employees because under the Board’s rules at that time both employers had to consent for such a unit to exist.

As we predicted would happen, the NLRB has now reversed that rule. In a decision issued July 11, 2016, Miller and Anderson, the Board ruled that employer consent is not required for units that include jointly employed and solely employed employees of a single user employer.

What does this mean? Now a union can petition to represent a unit that includes both the supplier employer’s employees (think “temps”) and the user employer’s employees in a single unit. The consent of either employer is not required.

In Miller and Anderson, the Board noted that when determining whether a petitioned-for unit that includes both supplier and user employees is appropriate, it will examine the traditional “community of interest” factors. In the past, when considering whether a given unit was appropriate for bargaining, the Board examined whether the employees shared a “community of interest.” Factors in that analysis included such matters as commonality of duties, supervision, wage and benefit administration, and whether there was centralized control of labor relations.

Where the supplier or “temp” employees are performing the same work or very similar work as the user employer’s employees, and where they are subject to the same day-to-day supervision, one suspects that the Board would find that such employees do share a community of interest. Therefore, the Board would find that they can be included in the same bargaining unit.

In Miller and Anderson, the Board noted that the two employers are required to bargain only over those terms and conditions of employment over which they have control. One suspects that the user employer will not be able to avoid bargaining over wages by claiming that the amount of pay is determined by the supplier employer. Indeed, it seems that a large part of the motivation for making it easier to organize a unit that includes both supplier and user employees in the same unit is to create a situation whereby the user employer, and its presumably larger wallet, can be compelled to the bargaining table for negotiation of wages and benefits.

For temporary agencies and their clients, preventive efforts are more important than ever, and those efforts should extend to all employees within their relationship. Employers who are particularly sensitive to or concerned about organizing efforts may wish to analyze their use of temporary agency employees with a view toward making changes that minimize risk.