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Once again, the NLRB has overturned precedent in their quest to dramatically expand employer liability. For over a decade, the NLRB has held that multi-employer bargaining units that include temporary employees from a staffing employer (“supplier employer”) and regular employees of a company that jointly employs temporary workers (“user employer”) require the consent of both employers. Last week, in Miller & Anderson, the NLRB overturned that precedent by ruling that a union may now organize this type of mixed-employee unit without employer consent. Instead, the employees need only share a community of interest. In doing so, the NLRB returned to the union-friendly standard from M.B. Sturgis, Inc., 331 NLRB 1298 (2000).
The standard creates numerous problems. Most importantly, a user employer will have to bargain with a mixed-employee unit even when the majority of its regular employees vote against unionization. In addition, the rule would also force supplier employers to bargain with unions that represent full time workers of user employers with which the supplier employer has absolutely no employment relationship.
In a previous blog, we discussed how the NLRB in Browning-Ferris reversed precedent to greatly expand its standard for determining whether an employer is a “joint employer,” finding that employers may now be joint employers if they have even the potential to control working conditions. In light of that ruling, Miller & Anderson takes on greater meaning as companies will more likely be found to be joint employers, thereby creating the types of multi-employer bargaining unit problems discussed above.
Employers should examine business relationships where they have authority to exercise control over employees, and therefore could be found to be joint employers of some of their workforce. As Board Member Miscimarra has noted regarding joint employment, Browning-Ferris “has already created an analytical grab bag from which any scrap of evidence regarding indirect control or incidental collaboration may result in joint employer status.”