May 23, 2022

Volume XII, Number 143

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May 20, 2022

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NLRB Expands Temporary/Contingent Worker Organizing Rights

The Nation Labor Relations Board’s recent decision in Miller & Anderson is another significant consequence of Browning-Ferris and allows unions to form a single bargaining unit of “user” and “supplier” employees much more easily than before.

The National Labor Relations Board’s (NLRB’s or the Board’s) decision in BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris) substantially changed the standard for determining when a “user” employer is deemed to be a joint employer of temporary or contingent workers (as well as the standard for determining joint employer status in a host of other commercial relationships, including outside suppliers, franchises, and on-site contractors). Browning-Ferris jettisoned at least 30 years of Board precedent and held that joint employer status no longer depends on direct control by a putative joint employer but instead can be found based on the mere right to control terms and conditions of employment, even if that control is indirect and/or unexercised.

On July 11, the NLRB issued a decision that compounds the consequences of Browning-Ferris for temporary/contingent worker arrangements.[1] Under Miller & Anderson, temporary/contingent employees who are jointly employed by a supplier employer and a user employer may now be forced into the same bargaining unit with the user employer’s regular employees. The employers involved no longer need to consent to this type of multi-employer bargaining unit.

In eliminating the previous “employer consent” requirement, the Board stated that if “the user employer and the supplier employer are joint employers of the employees referred by the supplier to the user for the latter’s use,” then one employer exists for at least some employees in the bargaining unit. This, under the Board’s rationale, means that a solitary “employer unit” exists for purposes of Section 9(b) of the Act. Employer consent to the bargaining unit therefore is not required, according to the Board.

Beyond the statutory language, the Board explained its policy reasons for forcing employers to participate in collective bargaining in a single group, building on a similar rationale from Browning-Ferris:

[The] interjection of a[n] [employer] consent requirement in workplaces utilizing contingent workers creates an obstacle to workers’ freedom to organize and bargain collectively as they see fit even when the contingent workers share a broad community of interest with the user’s solely employed employees they work alongside. *** [This policy] permits employees in an otherwise appropriate unit to pool their economic strength and act through a union freely chosen by the majority so that they can effectively bargain for improvements in their wages, hours and working conditions.

As a result of Miller & Anderson, unions are now free to pursue bargaining units composed (1) only of employees of a supplier employer, (2) only of employees of a user employer, or (3) employees of both the supplier and user employees if the employers jointly employ at least some employees, and the employee groups share a sufficient “community of interest.”

Although the Board held that “each employer is obligated to bargain only over the employees with whom it has an employment relationship,” how such dissected bargaining in a single bargaining unit can work in this scenario is unclear, and it has the potential to be even more complex and uncertain than other forms of joint employer bargaining required by Browning-Ferris. As dissenting Member Philip Miscimarra noted, the Board majority’s decision in Miller & Anderson leaves open the questions of

(1) how management parties will determine between or among themselves who is required to bargain over which subject(s) regarding what employees;

(2) how disputes will be resolved when the management parties cannot agree;

(3) what obligation will exist for the management parties to disclose information to the union(s) when the same information may never have been shared between or among the management parties themselves;

(4) how client contracts will affect the rights and obligations of the management parties, and whether the client contracts will control bargaining or whether the outcome of bargaining will control what must be negotiated (or renegotiated) in client contracts; and

(5) how the Board will address jurisdictional problems that arise when one management party is covered by the National Labor Relations Act and the other management party is not.

In sum, the one-two punch combination of Browning-Ferris and Miller & Anderson will create an expanded playing field for organizing employers that rely on third-party contractors for temporary/contingent workers. Employers should consider reviewing their existing contractor relationships for temporary/contingent workers and whether those workers share any community of interest with the user employer’s regular employees, such as daily supervision, interchange, and job duties. If there is substantial overlap in the functions performed by the employer’s employees and the temporary/contingent workers, the business reasons for maintaining that relationship should be evaluated in light of Miller & Anderson.


[1] Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016).

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VI, Number 200
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About this Author

Harry I. Johnson III, Morgan Lewis, labor and employment attorney
Partner

Harry I. Johnson, III serves clients as a management-side defense lawyer, with more than 20 years of experience in traditional labor matters before the National Labor Relations Board (NLRB) and federal courts. Harry practices across the entire traditional union/labor field, including in NLRB unfair labor practice and representation proceedings, union representation campaigns, union corporate campaigns, labor arbitrations, collective bargaining, labor-management relations, labor-related advice for mergers and acquisitions, and federal and state labor injunction cases,...

310.255.9005
Jonathan Fritts, Morgan Lewis, labor and employment attorney, litigation attorney
Partner

Jonathan C. Fritts represents clients in collective bargaining, arbitration, and litigation related to the National Labor Relations Act and the Railway Labor Act. Jonathan’s clients include companies in the maritime, airline, railroad, construction, retail food, and hotel industries, as well as manufacturing enterprises and private universities. He represents clients in all levels of US federal court, as well as in proceedings before the National Labor Relations Board, the National Mediation Board, and in arbitration.

202-739-5867
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