NLRB Invites Briefs on Mixed Bargaining Units of Solely- and Jointly-employed Employees | Practical Law

NLRB Invites Briefs on Mixed Bargaining Units of Solely- and Jointly-employed Employees | Practical Law

The National Labor Relations Board (NLRB) has invited amicus briefs in Miller & Anderson, Inc., to reconsider returning to the principles of M.B. Sturgis, which facilitated union organizing of temporary and contingent workers by permitted bargaining units that include a mix of solely- and jointly-employed employees, without the employers' consent.

NLRB Invites Briefs on Mixed Bargaining Units of Solely- and Jointly-employed Employees

by Practical Law Labor & Employment
Published on 10 Jul 2015 • USA (National/Federal)
The National Labor Relations Board (NLRB) has invited amicus briefs in Miller & Anderson, Inc., to reconsider returning to the principles of M.B. Sturgis, which facilitated union organizing of temporary and contingent workers by permitted bargaining units that include a mix of solely- and jointly-employed employees, without the employers' consent.
In M.B. Sturgis, the panel (Board) heading the NLRB's election and judicial functions overruled long-standing NLRB precedent and policy barring temporary employees supplied by a staffing agency from being included in a single bargaining unit with regular employees of the contracting employer, without the consent of both the staffing agency and the contracting employer (331 N.L.R.B. 1298 (2000)). Under Sturgis, if the regular and agency employees in the petitioned-for bargaining unit shared a sufficient community of interest, the bargaining unit would be found appropriate and permitted to vote in an NLRB representation case election. Oakwood Care Center overturned Sturgis and reinstated the long-standing precedent and policy (343 N.L.R.B. 659 (2004)).
On May 18, 2015, in Miller & Anderson, Inc., the Board granted a union's request for review of a regional director’s administrative dismissal of its petition for an election because it raised substantial issues warranting review about applying Oakwood Care Center (Order, 05-RC-079249, (May 18, 2015)).
On July 6, 2015, the Board issued a Notice and Invitation to File Briefs in Miller & Anderson, setting a schedule for the parties and amici to file briefs. The Board invited the parties and amici to address the following questions:
  • How, if at all, have the Section 7 rights of employees in alternative work arrangements, (including temporary, part-time and other contingent workers), been affected by the Board's decision in Oakwood Care Center, overruling Sturgis?
  • Should the Board continue conforming to Oakwood Care Center, which disallows inclusion of solely-employed employees and jointly-employed employees in the same unit without employer consent?
  • If the Board decides not to follow Oakwood Care Center, should it return to Sturgis, which permits units including both solely- and jointly-employed employees without employer consent?
  • Alternatively, what principles, apart from those set out in Oakwood and Sturgis, should govern this area?
Parties and amici must file any briefs with the NLRB by August 5, 2015. Parties must file any responsive briefs by August 17, 2015. All briefs must be filed electronically using NLRB E-File.