The National Labor Relations Board recently cleared a major hurdle to union representation for employees of businesses who staff their operations both directly and with the help of staffing agencies. In Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) (“Miller”), the Board returned to what had been the law of the land prior to 2004 with respect to collective bargaining in these types of employment relationships. The Board held that employer consent is not necessary for bargaining units that combine jointly employed employees and solely employed employees, so long as those employees share a community of interest. In an economy that has seen a marked increase in the use of staffing agencies in recent years, this ruling will make it much easier for thousands of working people across the country to assert their rights to collectively bargain with their employers, as protected by the National Labor Relations Act.
But why would employees or a union ever need consent from an employer to bargain collectively? Under Board law, employer consent is required when employees attempt to form a multi-employer bargaining unit. Multi-employer bargaining units (common in the construction industry, for example) occur when employees of various employers come together to bargain with their employers, and the employers agree to such an arrangement for a variety of reasons including the convenience of group bargaining, matching union strength, and avoiding competitive disadvantages resulting from nonuniform contractual terms. Since the Board’s Oakwood decision in 2004, Board law had categorized bargaining units made up of jointly employed and solely employed employees as multi-employer bargaining units, and required such bargaining units to get the consent of all parties.
Not anymore. In Miller, the Board ruled that such bargaining units are not multi-employer units, and may be approved and certified without the employers’ consent upon a showing of community of interest amongst the employees. In contrast to multi-employer units, the Board recognized that in bargaining units made up of jointly and solely employed employees, “all work is performed for the user employer and all employees are employed, either solely, or jointly by the user employer.” As such, the Board noted that these units are clearly of a different type from typical multi-employer bargaining units, therefore necessitating a different test for unit appropriateness. The result, of course, is that such employees will more easily be able to form unions and collectively bargain with their employers.
Spivak Lipton represents unions and employees looking to form unions. If you are an employee who is interested in forming a union, or a representative of a union and have a question about collective bargaining or labor relations, contact a Spivak Lipton attorney today.
