NLRB Significantly Broadens Scope
of Unionization of Temporary and
Supplied Workers in U.S.
On July 11, 2016, the National Labor Relations Board (“NLRB” or “Board”) issued its opinion in Miller &
Anderson, Inc., and held employer consent is no longer necessary for a union to organize a single
bargaining unit consisting of both the employer’s regular employees and temporary workers that are
supplied from other companies. In the wake of last year’s Browning-Ferris decision and the NLRB’s
expansion of its joint employment standard, Miller & Anderson seems to be the latest effort of the NLRB to
broaden the reach of the National Labor Relations Act (“NLRA” or “the Act”). The decision reversed previous
Board precedent, which gave employers discretion to consent to the inclusion of workers who are supplied
by other companies into a single bargaining unit. Now, combined units may be approved if the workers
share a community of interest. This decision is significant as it greatly expands employer’s bargaining
obligations toward temporary workers and other supplied workers, and potentially lengthens the relationship
between the parties.
Brand Attack: How to avoid becoming the
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When you mention the words “unionization
campaign,” most people think of picket
lines, strikes and collective bargaining
tables. Although they sometimes make
headlines, labor disputes have traditionally
been somewhat private affairs between
companies and their employees about
internal issues like better wages, benefits,
hours and overall working conditions. Not
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Miller & Anderson is a mechanical contractor that supplemented its
own workforce for a hospital construction project with temporary
workers supplied by Tradesmen International, a construction labor
supplier. On April 20, 2012, the Sheet Metal Workers International
Association filed a petition seeking to represent “All sheet metal
workers employed by [Miller & Anderson, Inc. and/or Tradesmen
International] as either single or joint employers on all job sites in
Franklin County, Pennsylvania.” The NLRB Region 5 Director
rejected the petition on April 26, 2012, noting that under thencurrent
Board precedent, “a unit consisting of employees employed
by a single employer and by a joint employer is a multiemployer
bargaining unit and is appropriate only if all employers consent.”
The Union filed a request for review on May 10, 2012, asking the
Board to reverse its previous holdings and determine that
employers’ consent is not necessary for units that include
temporary workers and regular employees of a single user
employer. On May 18, 2015, the Board granted the Union’s
request for review.
Employers should expect increased union efforts to organize temporary workers and jointlyemployed
Bargaining units may significantly increase in size and include temporary workers and jointlyemployed
Employers may be forced into collective bargaining relationships with the employers of the supplied
workers, potentially stemming from grievances the supplied workers have against their staffing
Depending on individual circumstances and the terms of any collective bargaining agreement,
employers may lose their ability to easily change and/or end their relationship with worker staffing
Employers can no longer veto the unionization of bargaining units that combine the employer’s
regular employees with workers who are supplied to the employer by another organization.
The NLRB’s Holding
In Miller & Anderson, Inc., the Board held that “[e]mployer consent is not necessary for units that combine
jointly employed and solely employed employees of a single user employer.” In so holding, the Board
stated that it was acting under its “statutory command” to “assure to employees the fullest freedom in
exercising the rights guaranteed by [the] Act.” In so doing, the Board will now permit workers supplied by
a staffing agency to be unionized within a single unit with the regular workforce.
The Board reasoned that requiring employer consent to multiemployer bargaining would deny workers
“full freedom of association.” It further reasoned that where regular employees and supplied workers are
all performing work for the same user employer, they are part of a “common enterprise” and must be
permitted to join a single bargaining unit. The workers need only pass the traditional “community of
interest” test before bargaining together.
The Board dismissed concerns that regular employees and temporary workers may often have conflicting
interests, stating that the employees could simply decline to join a single bargaining unit. The Board
likewise dismissed concerns that supplier employers and user employers may have conflicting interests,
stating that joint employers are forced to negotiate together despite conflicting interests in other
circumstances. Further, although the Board stated that employers are only obligated to bargain with
workers over those terms and conditions under their control, it did not explain how an employer could
make such a distinction in practice when supplied workers and regular employees are side-by-side in the
Impact on Employers
How We Can Help
Our Employment Counseling & Litigation attorneys understand the complexities of today’s workforces and
the underlying business relationships. Our attorneys routinely provide advice to companies regarding their
obligations under the NLRA as well as the various joint employer standards.
Our Employment Counseling & Litigation attorneys can:
Audit worksites for unionization susceptibility and vulnerability;
Advise on worker staffing relationships, joint employer status, and supply chain verification;
Provide practical advice regarding company’s rights and obligations under the National Labor
Relations Act; and
Represent company interests during collective bargaining to help obtain an agreement that
delivers optimal flexibility and cost control.
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