On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the employer and its staffing agency when seeking to combine their employees into a single bargaining unit. Miller & Anderson, 364 NLRB No. 39 (July 11, 2016).

“User” employers contracting with staffing agencies for temporary employees should be on high alert for potential joint unionization activities. “User” employers should review and assess their level of control over significant terms and conditions of the “supplier” employees’ employment. If the user employer is deemed a “joint employer” of the agency employees, the NLRB will hold that a bargaining unit of both agency employees and direct employees is permissible. Additionally, “user” employers with unionized workforces should review their collective bargaining agreements to identify any provisions that might expose them to increased joint employer risk when engaging a “supplier” employer, especially with respect to wage violations by the staffing agency.

In 2012, the Sheet Metal Workers International Association (“SMWIA”) petitioned the Board to represent a bargaining unit consisting of sheet metal workers employed by Miller & Anderson, an electrical and mechanical contractor in Franklin County, Pennsylvania, and temporary workers jointly employed by Miller & Anderson and Tradesmen International, a staffing service that supplies skilled construction workers. The Regional Director for Region 5 of the Board dismissed the petition, and SMWIA appealed.

The Board ruled 3-1 that a union seeking to organize a “mixed” bargaining unit consisting of temporary workers supplied by a staffing company (the “supplier”) and regular employees employed by the “user” employer – in this case, Miller & Anderson – is not required to obtain the two employers’ consent prior to proceeding to an election, provided that (a) the user employer is a joint employer of the temporary workers and (b) the temporary workers and regular employees share a “community of interest.” Factors that can establish such a community of interest include the same supervision, hours, working conditions, and training.

This is another area in which the Board has flip-flopped . The decision in Miller & Anderson is reversal of the Board’s ruling in Oakwood Care Center, 343 NLRB 659 (2004). Oakwood itself reversed M.B. Sturgis, Inc., 331 NLRB 1298 (2000), which held that such “mixed” unit elections could proceed absent consent from the user employer and its staffing company.

Impact on Employers: Many employers engage staffing agencies to obtain temporary employees to supplement their own work forces. Under the Board’s more expansive standard for joint employers announced in Browning-Ferris, those “user” employers are more likely to be joint employers of the temporary employees if they possess or exert authority over their working conditions. Miller & Anderson now makes it easier for those temporary workers to bargain alongside regular employees since employer consent is no longer required. Of course, the regular employees may prefer not to be joined with the temporary employees, as their interests may differ. Additionally, “user” employers face greater risk for unfair labor practices attributed to the “supplier” employer, along with the many other risks of being deemed a joint employer.