The National Labor Relations Board (NLRB or Board) has changed the standard – yet again – for determining the appropriateness of bargaining units in the context of labor staffing firms. In Miller & Anderson, the Board held that a union may seek to represent a unit of workers that combines employees who are jointly employed by the “supplier” employer (the staffing company) and the “user” employer with employees who are solely employed by the user employer, provided that the workers share a “community of interest.” The Board’s most recent standard conditioned such a unit on the joint employers’ consent, but the Board has flip-flopped on this standard over the years. The present decision reinstates the standard set forth in the 2000 Sturgis decision, which was reversed in the 2004 Oakwood decision. It arguably makes it easier for unions to organize supplied workers, particularly as it comes in the wake of last year’s Browning-Ferris Industries decision relaxing the standard for determining joint employer status.
The case arose in the construction industry. Sheet Metal Workers Local 19 filed a petition to represent a unit of all sheet metal workers working for Miller & Anderson on all jobsites in Franklin County, PA, including those employees employed directly by Miller & Anderson and those supplied by Tradesmen International. Miller & Anderson’s status as a joint employer of the supplied workers was undisputed. An NLRB regional director dismissed the petition because the Oakwood standards were not met. The Board in Oakwood viewed such combined units as multiemployer units, which are appropriate only with the consent of the parties, and such consent was lacking here. Local 19 asked the Board to review the dismissal of its petition and to overturn Oakwood. AGC, through its membership in the Coalition for a Democratic Workplace, filed an amicus brief arguing against overturning Oakwood and returning to Sturgis.
The Board agreed with the union, finding that returning to the Sturgis standard is more consistent with its statutory charge “to afford employees ‘the fullest freedom’ in exercising their right to bargain collectively.” The Board also found that the Oakwood standard was inappropriate because the Sturgis (and present) context is substantively different from the traditional multiemployer bargaining situation. While both situations involve multiple employers, the Sturgis situation is not “multi-employer” bargaining because all the employees in the unit perform work for the user employer and are employed, either solely or jointly, by the user employer. In a multi-employer unit, there is no common user employer of all employees. Finally, the Board clarified that its ruling does not mean that every combination unit sought by a union will necessarily be found appropriate. The Board will use its traditional “community of interest” test to evaluate the appropriateness of the petitioned-for unit in each case. That test examines various factors to determine whether the employees share mutual interests in wages, hours, and other conditions of employment.
Contractors that use outside staffing firms may want to review their contractual arrangements with such firms and their actual practices related to supplied workers to assess the risk of joint employer and community-of-interest findings. More information and guidance on the significance of the Sturgis standard are found in the Labor & HR Topical Resources of AGC’s website. Once logged in as an AGC member, go to www.agc.org/topicalresources and select the main category “Other Legal Issues” and the subcategory “Temporary & Leased Employees.” For additional information and guidance on the new joint employer standard, select the main category “Unions/NLRA” and the subcategory “Joint Employers.”