The Obama administration’s top labor arbiters handed organized labor another major victory that will ease the path to unionization for temporary workers and expand the definition of joint employer.
The National Labor Relations Board, which oversees workplace disputes and union elections, overturned a 2004 ruling that said that temp workers could not join collective bargaining units at their placements without the approval of their direct employer. The ruling in Miller & Anderson returns to a 2000 board precedent that allowed temp workers who demonstrated commonality with their directly employed counterparts to join bargaining units without the consent of their agency.
"Employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer," the board ruled in Miller & Anderson. "Allowing jointly employed employees to be included in a bargaining unit with their solely employed coworkers imposes no additional burden on the supplier employer because its bargaining obligation extends only to the employees it jointly employs and only with respect to such terms and conditions which it possesses the authority to control."
The 3-1 vote split on along party lines with the board’s three Democratic members, all of whom were union attorneys, voting to ease the ability of jointly employed workers to join union bargaining units. The ruling has been called a handout to unions, which will be able to boost membership by incorporating joint-employed workers into their rolls.
Management-side labor attorneys at Ballard Spahr said that the NLRB "clearly intended to aid unions in their organizing efforts."
"Under the Board's ruling, these two classes of employees may now be represented in a single bargaining unit without either employer's consent, so long as the employees have a community of interest," the firm said in an email advisory. "The Miller & Anderson decision is clearly intended to aid unions in their organizing efforts."
The decision could dramatically hurt workers at temp agencies, which employ nearly 3 million people in the United States. Labor lawyers are advising employers to create direct firewalls between temp workers and full-time employees, in order to avoid the "community of interests standard." If clerical workers at a company are unionized, for example, the company should avoid using a temp to photocopy or provide other services that could be classified as clerical—which could cut back on the demand for temps, as critics argued in briefs submitted to the board.
"If such circumstances exist, it is likely that the solely employed and the jointly employed employees can be combined into a single bargaining unit—with no consent required," Ballard Spahr said. "To avoid this result, user employers should take steps to change employment conditions to limit community of interest among the solely employed and jointly employed employees."
Miller & Anderson is the second major joint employer decision since 2015. The board overturned decades of precedent in August 2015 by ruling in Browning Ferris that franchise businesses and contractors could be held accountable for labor violations perpetrated by subcontractors.
Republican Board member Philip A. Miscamarra dissented from Miller & Anderson, saying that it will foster more complications and confusion in labor relations. The majority’s reasoning, he said, could entangle suppliers and subcontractors who have no actual business relationship with the workers.
"The Board majority in Browning-Ferris already created a new type of multi-employer bar- gaining, in joint-employer situations, that will predictably result in confusion and instability," Miscamarra said in his dissent. "The inescapable reality is that the multi-employer/non-employer bargaining units my colleagues approve today will consist, in part, of employees with whom one of the management participants does not have any employer relationship whatsoever." (Emphasis in the original.)
Labor watchdogs criticized the NLRB for advancing a union agenda, rather than fairly settling labor disputes using settled law. Michael Layman, executive director of the Coalition to Save Local Businesses, said that the board will hurt small businesses, which could lose out on contracting work as larger employers seek to insulate themselves from additional liability.
"In issuing its Miller & Anderson decision, the NLRB has once again demonstrated its intent to manufacture new, harmful joint employment policy at the expense of Main Street businesses," he said in a release. "It is merely another invention by the NLRB of increased joint employment liability that is costing locally owned businesses."
The agency said that the standard set forth in the July 11 ruling would take effect immediately.
"A user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. However, it will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control," the agency said in a release.