The National Labor Relations Board (NLRB) recently made it easier for unions to force joint employers to recognize and bargain with unions. In its decision in Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the NLRB made it more likely that joint employers (now defined broadly under other NLRB precedent) will be forced to recognize the union of their co-employers’ workers, and will be required to bargain directly with the union over the terms and conditions of employment it controls. Companies which use temporary staffing agencies and other such third-party agencies, as well as staffing agencies themselves, and franchisees and franchisors all should be aware of the possible consequences. For example, a national franchisor may be required to bargain with a franchisee’s union regarding workplace policies and standards over which the franchisor attempts to assert control. Or, a user of temporary labor could be required to bargain with its staffing agency employees’ union regarding reasons for ending the temporary work assignment, standards for converting the temporary worker to direct employment, workplace policies, assignment of work, production and evaluation standards, and the like. Or, a temporary staffing agency’s employees could be organized by its customer’s employee union and be required to bargain over pay, benefits and other terms and conditions of employment, merely by virtue of its employees being assigned as temporary workers at that particular unionized employer.
In Miller & Anderson, Inc., the NLRB changed a policy allowing solely employed and jointly employed workers to be represented in the same bargaining unit without employer consent. This ruling follows the NLRB’s 2015 decision in Browning Ferris Industries of California, Inc. d/b/a Newby Island Recyclery & FRP-II, LLC. d/b/a Leadpoint Business Services, 362 NLRB No. 186 (August 27, 2015), which liberalized the standard for determining when two or more companies are considered “joint employers.” See also summary available at https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-browning-ferris-industries). These decisions have reduced barriers to unionization and have broadened the potential reach of unionization in such settings.
In particular, in Miller & Anderson, Inc., the NLRB held that a single bargaining unit may properly be composed of both jointly and solely employed workers, even if the two employers do not wish to bargain as a team, and so long as the employees share a “community of interest.” Under the ruling, both a user employer and a supplier employer may be represented in a single bargaining unit without either employer’s consent, so long as those employers share 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. The decision is a reversal of the 2004 decision in Oakwood Care Center, 343 NLRB 659 (2004), and is clearly intended to help unions in their organizing efforts.
Joint employers should determine whether a community of interest exists among their solely and jointly employed workers. If such circumstances exist, it is likely that the solely employed and jointly employed workers can be combined into a single bargaining unit. To avoid this result, employers should take steps to limit a community of interest among their solely and jointly employed workers. These steps may include having the two groups perform different types of work, requiring different skill sets and job functions, prohibiting the two groups from substituting for one another, differentiating their wages and benefits, subjecting the workers to separate workplace polices, and having the workers report to different supervisors.