NLRB Says Joint-Employer Workers Can Join Unions Without Consent of Employers

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July 11, 2016

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Last year, we reported on the National Labor Relations Board’s (“NLRB”) controversial decision to redefine the joint-employer standard.  This year, the NLRB has reinstated a standard that allows bargaining units composed of both solely and jointly-employed workers to unionize, with or without their employer’s consent.  This would allow temporary workers who are jointly employed to more easily unionize.

Historically, the NLRB has adopted and reversed this standard multiple times.  The 2004 Oakwood Care Center decision concluded that bargaining units composed of workers with multiple employers had to obtain consent from both employers before engaging in union elections.

Now, the NLRB’s most recent decision in Miller & Anderson reversed the standard set in Oakwood.  The NLRB reasoned that it would be appropriate for solely-employed and jointly-employed workers operating under a single user employer to form a single unit for collective bargaining, if the group of workers share enough mutual interest in working conditions.  Going forward, the NLRB will use the “community of interest” test to determine if it is appropriate for groups of solely and jointly-employed workers to form a single unit.

By removing the requirement for multi-employer consent, temporary workers are able to organize more easily, whereas previously, one of the employers could block a combined unit by withholding its consent.  The NLRB notes that employers are already required to bargain all terms and conditions of employment with its solely employed employees, and will now need to bargain with jointly-employed workers only in reference to the terms and conditions of employment that the single-user employer has authority to control.

Action Items

  1. Review the full text of the Miller & Anderson decision here.
  2. Consult with your labor relations counsel to assess the impact of the ruling on any jointly-employed workforce.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.

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