In August, the Labor Board reversed thirty years of precedent in its Browning-Ferris decision. It is poised to do it again. This time the precedent dates back to 1973.

In Browning-Ferris, the Board expanded the joint employer test from whether the host employer exercises direct control over agency employees to include whether the host employer exercises indirect control (e.g., host employer supervisors tell agency supervisors what their employees should do) and/or have possible control (e.g., the contract with the agency retains direct or indirect control over agency employee wage/hour costs). Browning-Ferris so vastly broadened the joint employer determination that now it is almost impossible for a host employer to have even any realistic control over the work done by and cost of the agency employees without being a joint employer. The result is that if the agency employees choose to be represented by a union, the host employer will have to be at the bargaining table and negotiate with the union about the terms and conditions of their employment, at least while working at the host employer’s facility.

What’s up next for the Board is to close the circle and will, no doubt, use the pending case of Miller & Anderson to do it: permit bargaining units comprised of both host and agency employees, even when one or both employers object.

Assuming that the Board does use Miller & Anderson to reverse a principle that dates back to 1973 (Greenhoot, Inc.) and permits mixed units, employers that use agency employees and who are determined to be joint employers under Browning-Ferris may be forced to negotiate a single labor contract covering both its and agency employees. The two decisions will make the following scenario possible:

  • An employer of thirty-five regular employees hires an agency to supply it with fifteen workers during the host’s busy season.
  • A union gets authorization cards from all fifteen agency workers with the promise that the union will get them full-time, “permanent” jobs with benefits with the host employer. Since the union has more than 30% of the total number of employees signing cards, the union files a petition for an election covering a unit of both the staffing agency employees and the host’s employees.
  • Because the host employer is a “joint employer” under Browning-Ferris, the Board approves of the unit and schedules an election.
  • If the union wins the election, the host employer and the agency will have to bargain a labor contract that will cover both the host employer’s regular employees and the agency’s employees.

Of course, there are many unstated facts in the above scenario, but the scenario is neither unreasonable nor unlikely.

Employers that use agency employees must anticipate that they not only may be joint employers of the agency employees but also that they may have to deal with a bargaining unit that includes both its employees and the agency employees.

What if an agency employee working at the host’s facility and covered by the labor contract with the host is transferred to another employer? The other employer could not refuse to accept the employee because he/she is represented by a union at the host’s facility because the refusal would violate Section 8(a)(3) of the NLRA. The questions and complications seem endless.

If employers who use agency employees are not taking actions now to avoid the perfect storm that will be caused by the conjoining of the Board’s Browning-Ferris and the anticipated Miller & Associates decisions, the circle closed by the Board will be a noose.

Next up – reversal of the Board’s 1988 decision in DuPont Co that denied Weingarten rights to non-union employees. It’ll happen and non-union employers will be required to permit a union salt to be present during any investigative interview with an employee who requests it. All that has to happen is the right case to come before the Board as a vehicle.

By the way, there is no party who will be affected by the Miller & Associates decision. Miller & Associates employees are no longer used by the host employer. The Board’s decision would be purely advisory…something that is not permitted because it is beyond the authority of the Board, if anyone bothers to look at judicial history. So, maybe the case that will be used to reverse DuPont Co. will not have to be four-square either. Any excuse will do for this Board of activists..