For those that have followed developments in labor law over the years, it should come as no surprise that the National Labor Relations Board is again visiting the issue of whether it can direct a representation election for a unit consisting of both jointly employed temporary workers and regular workers employed solely by the user employer. On July 7, 2015, the Board invited:

the filing of briefs in order to allow parties and interested  amici an opportunity to address issues raised in Miller & Anderson, Inc. (05-RC-079249), including whether the Board should adhere to its decision in Oakwood Care Center  (343 NLRB 659), which disallowed inclusion of solely employed employees and jointly employed employees in the same unit absent consent of the employers, and if not, whether the Board should return to the holding of M.B. Sturgis, Inc. (331 NLRB 1298), which permits the inclusion of both solely and jointly employed employees in the same unit without the consent of the employers.

For at least 25 years, how the Board has interpreted the National Labor Relations Act regarding this particular issue has hinged purely on the composition of the National Labor Relations Board. Until 2000, the Board had relied upon Greenhoot, 205 NLRB 250 (1973), and Lee Hospital, 300 NLRB 947 (1990), for the proposition that employer consent is necessary whenever there is a mixed unit of jointly employed employees and solely employed employees. However, a Democratic controlled Board in 2000 reversed the 10-year precedent of Lee Hospital and held that it could impose a unit consisting of jointly employed employees and solely employed employees in M.B. Sturgis, 331 NLRB 1298 (2000). Relying upon decisions predating Greenhoot and Lee Hospital in which the Board had found appropriate units comprised of both solely employed employees and jointly employed employees without requiring consent, the Board determined that Greenhoot and Lee Hospital were wrongly decided.

M.B. Sturgis did not stand for long, however. In 2004, the Republican controlled Board decided Oakwood Care Center, 343 NLRB 659 (2004), in which it held that M.B. Sturgis was wrongly decided. Specifically, it ruled that bargaining units consisting of both jointly employed temporary workers and regular workers employed solely by the user employer constitute multiemployer units, which require the consent of both employers as:

Congress has not authorized the Board to direct elections in units encompassing the employees of more than one employer.

With its invitation for briefs in Miller & Anderson, the current Democratic controlled Board appears inclined to return to the M.B. Sturgis standard as it asks interested parties to address the following questions:

  1. How, if at all, have the Section 7 rights of employees in alternative work arrangements, including temporary employees, part-time employees and other contingent workers, been affected by the Board’s decision in Oakwood Care Center, 343 NLRB 659 (2004), overruling M.B. Sturgis, 331 NLRB 1298 (2000)?
  2. Should the Board continue to adhere to the holding of Oakwood Care Center, which disallows inclusion of solely employed employees and jointly employed employees in the same unit absent the consent of the employers?
  3. If the Board decides not to adhere to Oakwood Care Center, should the Board return to the holding of Sturgis, which permits units including both solely employed employees and jointly employed employees without the consent of the employers? Alternatively, what principles, apart from those set forth in Oakwood and Sturgis, should govern this area?

If the Board does overrule Oakwood and reinstate M.B. Sturgis, that would further the impact of the Board’s imminent decision in Browning-Ferris, in which many expect the Board to adopt a much broader joint employer standard. Interested parties have until August 5, 2015 to submit their briefs to the Board.

You can continue to follow this issue on the blog, on Twitter (@LRToday), and our Flipboard magazine.