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July 11 — Labor unions can seek representation elections in units that combine workers of one company with employees who are provided to the company by another organization, the National Labor Relations Board held 3-1 ( Miller & Anderson, Inc., 2016 BL 201145, 364 N.L.R.B. No. 39 , 7/11/16 ).
The board's July 11 decision may make it easier for unions to organize the growing number of employees who work for staffing companies and other labor suppliers.
The board held in 2004 Oakwood Care Center that employers had to consent to elections in such units. However, the NLRB is now returning to an earlier policy that the combined units can be approved over management objections if the employees in question share a community of interest.
Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran joined in the new ruling. Member Philip A. Miscimarra dissented.
The case began in 2012 when Sheet Metal Workers International Association Local 19 filed an election petition.
The union requested a vote on union representation by sheet metal works of Miller & Anderson, Inc. on a Pennsylvania construction project, a well as employees working on the project who were supplied to Miller by an independent company, Tradesmen International.
The parties stipulated that Miller and Tradesmen were joint employers of the workers furnished by Tradesmen, but Tradesmen had no employment relationship with Miller's sheet metal workers.
An NLRB regional director dismissed the election petition, but the board agreed in 2015 to review the case.
The NLRB held in M.B. Sturgis, 331 N.L.R.B. 1298, 165 LRRM 1017 (2000), that it was permissible, without employer consent, to have a bargaining unit combining temporary workers jointly employed by a supplier employer and a user employer along with other workers who were solely employed by the user employer.
Four years later, in H.S. Care, L.L.C., d/b/a Oakwood Care Center, 343 N.L.R.B. 659, 176 LRRM 1033 (2004), a divided board voted to overrule Sturgis.
The Oakwood Care majority cited Section 9(b) of the National Labor Relations Act, 29 U.S.C. § 159(b) , which directs the NLRB to decide whether an appropriate unit is “the employer unit, craft unit, plant unit, or subdivision thereof.”
Certifying a union as the representative of a multiemployer unit without the consent of the employers would be “inconsistent with the plain meaning of ‘employer unit' in the Act,” the majority found in Oakwood Care.
Pearce, Hirozawa and McFerran interpreted the NLRA differently. Finding “the Act does not compel Oakwood's holding,” they said Sturgis does not sanction the kind of multiemployer bargaining that requires the consent of participating employers.
In traditional multiemployer bargaining, the board members said, the employers are entirely independent entities. However, they wrote “in a Sturgis unit, all of the employees are employed by the user employer.”
Because all of the Miller and Tradesmen workers at the Pennsylvania job site were performing work for the same “user employer,” the board said, combining them in a single “employer unit” would be consistent with the language of Section 9(b) of the act.
Oakwood Care required that if employees of a user and supplier employer wanted to unionize, they would have to run “parallel organizing drives,” which would diminish their bargaining power, Pearce, Hirozawa and McFerran said.
They wrote that Oakwood Care's requirement for employer consent is “disconnected from the reality of today's workforce,” which frequently includes employees of staffing companies or temporary agencies working side-by-side with a company's regular employees.
Overruling Sturgis and reversing the regional director's dismissal of Local 19's petition, the board said, “Employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer.”
Miscimarra wrote that he and then-Member Harry I. Johnson dissented from the board's 2015 decision in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186, 204 LRRM 1154 (2015), because they considered it an unwarranted expansion of the NLRB's joint employer standard.
“In today's decision, my colleagues substantially enlarge the expanded joint-employer platform created by Browning-Ferris and require a more attenuated type of multi-employer/non-employer bargaining in a single unit when the multiple business entities do not even jointly employ all unit employees,” Miscimarra wrote.
Employers and unions will find it difficult to anticipate when multiple employers must bargain with a union, he said. “I believe the Board must recognize that stable bargaining relationships are unlikely to result from the type of multi-employer/non-employer bargaining unit recognized by my colleagues today,” Miscimarra wrote.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_Miller__Anderson_Inc_364_NLRB_No_39_2016_BL_2.
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