NLRB Allows Bargaining Units With Temporary, Permanent Employees Without Employer Consent

Author: Marta Moakley, XpertHR Legal Editor

July 13, 2016

In Miller & Anderson, Inc., the National Labor Relations Board has ruled that employer consent is not required for bargaining units that combine jointly employed and solely employed employees of a single employer. The Board reasoned that these units are appropriate so long as the contingent and regular employees "share a community of interest."

The issue raised by the employer for review was whether, under the National Labor Relations Act (NLRA), the employees (including those jointly employed) who work for an employer must obtain employer consent if they wish to be represented for purposes of collective bargaining in a single unit, even if both groups of employees share a community of interest with one another under the Board's traditional test for determining appropriate units.

In a 3-1 decision, the NLRB held that employer consent was not required for units that would pass the traditional "community of interest" factors test. The Board reasoned that contingent employees would have a community of interest with those employees not jointly employed.

In addition, the Board explained that Congress passed the Act in order to "compel employers to recognize and bargain with the designated representatives of appropriate units of employees even if the employers would prefer not do so."

In its decision, the Board overruled Oakwood Care Center, a 2004 ruling that held that bargaining units that combined employees who are solely and jointly employed by the user employer constitute multi-employer units, which are appropriate only with consent of the parties. In rejecting this standard, the Board cited Section 9(b) of the NLRA, interpreting this as a "statutory command . . . to assure to employees the fullest freedom in exercising the rights guaranteed" by the law when determining whether a petitioned-for bargaining unit is appropriate.

However, briefs filed in opposition to the petition (including one by the US Chamber of Commerce) argued that allowing these types of units absent employer consent (where dissent would be possible within a unit itself as well as with the opposing party in negotiations) would:

  • Hinder meaningful bargaining;
  • Threaten labor peace; and
  • Harm employee rights.

However, the Board rejected these arguments citing decades of legal precedent and practice prior to Oakwood.

The Miller case has been remanded to the Regional Director for further proceedings.

Last August, the Board expanded the definition of joint employer under the NLRA. The Miller decision builds on that precedent, which could result in employers being increasingly accountable for the labor practices of staffing agencies, franchisees or subcontractors.