NLRB Decision Makes Organizing Contingent Workers Even Easier

July 14, 2016

In a widely expected ruling, the National Labor Relations Board (NLRB) has again reversed existing precedent to make it easier for unions to organize workforces that include contingent workers.

The new case, Miller & Anderson, Inc. and Tradesmen International, overruled a decision issued by the Bush-era NLRB that required employer consent for a union to organize a unit including an employer’s regular employees and contingent workers provided by a “supplier” employer. Obviously, given the different interests of the two employers and their employees, it would be rare for the “user” employer and the “supplier” employer to consent to their employees being included in the same unit.

In the new case, the Board holds that the employers’ consent is not necessary for unions to organize units including employees solely-employed by a “user” employer, along with employees jointly employed by the “user” employer and one or more “supplier” employers. The only requirements will be that the unit be “appropriate,” and that employees in the proposed unit share a “community of interest.” Under current Board law, the burden to meet those standards is not high.

The Board majority framed its decision as a return to the rule first established in a case called M.B. Sturgis, which first held that employer consent was not required in these mixed units. On the surface, that is correct.

But as the dissenting Board Member explained, the labor landscape is much different today than it was when Sturgis was the law. The most important difference is the Board’s recent Browning-Ferris Industries of California decision, which greatly expanded the Board’s standard for finding joint-employer relationships. In Browning-Ferris, the Board scrapped the long standing requirement that a business exercise actual control over workers in order to be deemed their “employer.” Instead, under Browning-Ferris, a business is deemed an “employer” if it has, or has reserved, the right to directly or indirectly “share or co-determine those matters governing the essential terms and conditions of employment.” That is, the potential exercise of control over contingent workers’ working conditions is sufficient to support a joint-employer finding. The result is that under current law, it will be much easier for a union to establish that a unit including employees of a “user” and a “supplier” employer is appropriate.

Given the vast types of contingent workers arrangements in today’s economy, it will be interesting to see just how the Miller & Anderson decision affects union organizing. It is clear, however, that the Board has taken another major step in fulfilling what it sees as its mission—to encourage “the practice and procedure of collective bargaining,” and to “facilitate employees’ opportunity to organize unions.”

For further information, or if you have any questions, please contact Joseph W. Bryan at jbryan@taylorenglish.com or 678-336-7192.

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