On May 12th the NLRB issued a Notice And Invitation To File Briefs regarding a potential modification to the Board’s current joint employer standard as articulated in TLI, Inc., 271 NLRB 798 (1984), that, by itself, raises concerns regarding an expansion of such issues in the labor area, but one issue in particular. For many years the NLRB has fluctuated in its approach to the question of whether or not employees of joint employers may be part of a single bargaining unit with or without the consent of both employers. The Bush Board in 2004, in H.S. Care L.L.C., 343 NLRB 659 (2004), overruled prior case law in this area and righted the ship by stating that, in a joint employer situation, the employees can not be part of a single bargaining unit without the consent of both employers. The NLRB did not reference H.S. Care L.L.C. in its Notice And Invitation To File Briefs but this is likely a first step in the process to overrule that matter and return to the prior case law of M.B. Sturgis, 331 NLRB 1298 (2000), which held that, in a joint employer situation, temporary employees supplied by a staffing agency could be included in a single bargaining unit with regular employees of the contracting employer without the consent of both the staffing agency and the contracting employer. UnderM.B. Sturgis, as long as the regular and agency employees in a petition for a bargaining unit shared a sufficient community of interest, the bargaining unit would be found appropriate.
Hence, while the issue under review may appear to have limited impact, it could be the first step in the process to once again expand the scope of potential organizing by eliminating some of the previously established standards in this area. Hopefully other commentators will pick up this issue and insure that this first step does not result in the expansion feared.