July 12, 2016
By Larry Cary
NLRB Rules that Employers’ Consent No Longer Needed When Union Seeks to Represent Single Unit that Includes Both Employees and Subcontracted Employees on the Premises
In a case called Miller & Anderson, Inc. the NLRB made organizing many workplaces much easier. Yesterday the Board ruled that employers no longer needed to give consent when a union files a representation petition seeking to represent a bargaining unit that combines both solely and jointly employed employees of a single user employer.
Under former case law, if the employer which supplied the labor and the employer who used the labor failed to consent, the Board would not process the petition to an election.
To maintain such a petition, the union still must show that the two groups – the employees solely employed by the employer – and- the employees being supplied by an outside company – share a community of interest. Frequently, this can be demonstrated by the agency employees being subject to control by the user company, that is to say, the user company schedules, supervises and disciplines the agency employees, or has the right to do so under the contract that exists between the user employer and the supplier employer.
This decision represents an extension of Board case law which recently held that joint employer status exists when one employer retains the right to control an employee supplied by a subcontractor even though the employer does not actually use the right.
Today, millions of workers are hired through an agency which technically continues to employ them when dispatched to work at an employer’s work site, often for indefinite periods of time. At the site, the user employer gives the employee orders about how and when to do the work.
Before the Board changed the case law it was difficult to organize and get a collective bargaining agreement covering such agency employees because they were viewed as being employed only by the agency. This meant that the user employer was under no obligation to bargain with a union representing the agency employees and the union was not legally free to put economic pressure on the user employer which usually indirectly dictated the economic terms of the agency’s “employees”.
*Larry Cary is a partner at the labor law firm of Cary Kane LLP. Information about the firm can be found at www.carykanelegal.com.