United States: NLRB Paves The Way For Bargaining Units Composed Of Employees Of Two Different Employers

In a widely anticipated decision, the National Labor Relations Board has reversed its 2004 decision in Oakwood Care Center,1 and determined that a union seeking to represent employees in a bargaining unit composed of employees solely employed by a "user employer" (a company that hires temporary workers) and those jointly employed by the user employer and temporary labor provider is not required to obtain the consent of both employers. In Miller & Anderson, Inc.,2 the Board held that in determining if a combined unit is appropriate, it will apply traditional "community of interest" factors. The Board added that, in a combined unit, a user employer is required to bargain over all terms and conditions of employment for unit employees it solely employs, but only the terms and conditions of employment of jointly-employed employees that it possesses the authority to control. The decision represents yet another repudiation of precedent issued by the Board under the previous Administration, and appears to be a natural progression of the Board's expansive view of joint employer relationships, a view most prominently articulated in Browning-Ferris Co.3 last year. It is also a continuation of the NLRB's effort to expand the reach of the National Labor Relations Act to alternative work arrangements and contingent workforces—fixtures of the modern workplace.


Miller & Anderson arose out of the commonplace factual setting of one company contracting with another to provide labor services. In this case, Miller & Anderson, the user employer, and a temporary worker supply company were alleged to have singly or jointly employed sheet metal workers of both entities at a job site in Pennsylvania.4 The union petitioned to represent a combined unit of all sheet metal workers at the site, and the Regional Director dismissed the petition, noting that both employers failed to consent to such a unit.

The majority in Miller & Anderson held that the propriety of petitioned-for units combining solely and jointly employed workers of a single user employer rises or falls based on the traditional community of interest factors for determining unit appropriateness, regardless of whether the employers in question consent to inclusion of their employees in a combined bargaining unit. Those "community of interest" factors include criteria such as: common functions and duties, shared skills, functional integration, interchange, frequency of contact with other employees, commonality of wages, hours, and other working conditions, permanent transfers, shared supervision, common work location, and bargaining history.

The M.B. Sturgis Rule: No Employer Consent Required for "Mixed" Unit

In M.B. Sturgis,5 the Board in 2000 considered whether to approve a unit consisting of employees employed by M.B. Sturgis, plus a group of temporary employees employed by Sturgis and a staffing agency. The petition was initially dismissed because both Sturgis and the temp agency did not consent to the inclusion of the employees in the same unit. The Board reversed, holding that the consent of both employers was irrelevant where the community of interest factors supported a combined unit of "user employees" (those employed by Sturgis) plus the employees jointly employed by Sturgis and the agency. The Board distinguished situations involving true "completely independent user employers" in multi-employer bargaining units from situations in which a user and supplier employer jointly employ individuals alongside the user's solely-employed employees. The Board found that while employer consent was still required in situations involving multiple employers where there was no common "user employer," such consent was not required in cases like Sturgis, where the user employer employed all of the employees in the proposed unit, even if another entity partially employed some of those individuals as well.

Oakwood Care Center Re-institutes Consent Requirement

Just four years later, the NLRB reversed M.B. Sturgis and held that the consent of both employers was required to approve a combined unit of jointly-employed user and supplier company employees with solely-employed user company employees. The Board reasoned that Section 9(b) of the National Labor Relations Act, which governs the Board's authority to make unit determinations, speaks in terms of "employer unit" as well as smaller sub-units within an "employer unit." The Board in Oakwood found that the type of unit approved without consent in Sturgis was, by definition, not an "employer unit" because it inherently involved two different employers. The Board noted that the legislative history behind Section 9(b) focused on units within an employer, rather than units involving more than one employer.

Miller &Anderson: A Return to Sturgis

Referencing the broad statutory purpose and provisions favoring collecting bargaining rights, the Board found that nothing in the text of Section 9(b) explicitly mandated a consent requirement, nor was the term "employer unit" defined under that provision. It distinguished a Sturgis-style unit from a true multi-employer unit by noting that in a Sturgis unit, the user employer employs all employees in the unit, either jointly or solely, and all employees perform work side-by-side as part of a common enterprise. In contrast, according to the majority, a true "multi-employer" unit situation often involves employers who compete with each other, operate in separate locations, and hire their own employees.

The Board reasoned that requiring consent of both the user and supplier employer was too limiting on employees' right to organize and determine whether they wished to be included in a mixed unit. While nothing under the Sturgis rule requires a unit of user and jointly-employed temporary agency employees, the Board found that allowing such units over the employers' objections "assures the fullest freedom" to employees to either organize such groups separately or together. In contrast, according to the Board, the consent requirement precludes contingent workers from effectively organizing because they are often spread out among different "user" clients.

The Board cited "changes to the American economy over the last several decades" as a further justification for its approach. Those changes include the dramatically increased use of contingent workers; the Board noted that the protection of the organizing rights of those workers is best served by elimination of the consent requirement in Sturgis-style units.

The Board dismissed concerns that its approach might complicate and introduce conflicts between the user and supplier employer at the bargaining table, remarking that even under Oakwood, a union could organize separate units of a user employer's employees and its joint-employer employees. As in Browning-Ferris, in which the Board changed its longstanding joint-employer standard, the Board dismissed bargaining-related concerns, reasoning that each employer would only be obligated to bargain over those areas in which the employer exercised meaningful control. The Board added that appellate courts, pre-Sturgis, had rejected such bargaining-related concerns in requiring joint employers to bargain with the same group of employees.

Dissent Blasts Holding

Member Philip Miscimarra issued a blistering dissent that hearkened back to his dissent in Browning-Ferris. In particular, Miscimarra took issue with requiring an entity to engage in multi-employer bargaining without consent, and despite the absence of any employment relationship between the entity and the employees over whom it must bargain. This concern is particularly acute given the vast expansion of the joint employer concept occasioned by Browning-Ferris. As Miscimarra observed, under Sturgis, a requirement of multi-employer bargaining was at least cabined by well-established joint employer principles ensuring that only employers that actually exercised the requisite control over the employees in question would be included in the bargaining process. Instead, eliminating the consent requirement while expanding the concept of joint employer beyond all bounds results in a "multi-employer/non-employer bargaining" regime, as Miscimarra termed it. This regime could result in multiple competitor-supplier employers being required to bargain together simply by virtue of all having a "shared user" client.

In the end, introducing into the bargaining process entities lacking any employment relationship with the employees or that, at worst, have adverse interests to the employer with the employment relationship, will make bargaining more complicated, more uncertain, and less stable. As Miscimarra noted, the approach "compounds the plethora of unworkable bargaining issues created by the expanded Browning-Ferris joint employer standard."


The decisions in Browning-Ferris and Miller & Anderson put employers in a quandary. First, Browning-Ferris makes it much more likely that an entity will be deemed a "joint employer" with a temporary labor provider in circumstances in which such a relationship was never contemplated, and even where control over the subject employees is either non-existent or minimal. Second, to compound the situation, an employer that "jointly employs" temp workers under the Browning-Ferris standard will be forced to recognize and bargain with a unit of both its own regularly employed workers who work side-by-side with such temporary workers and those temporary workers, even though the latter workers' terms and conditions of employment may be controlled entirely by a different employer—one that, in turn, exercises no control over the user employer's employees.

The decision also increases the risk that an employer's own workforce will be organized by virtue of the organizing whims of the temporary workforce's employees. The consent requirement served as a firewall against such organizing, and ensured that employees of distinct employers would only be combined if the employers both thought it made sense. While it is true that petitioning unions will need to establish that the user employees and temp employees share a "community of interest," such a fact-intensive inquiry provides little guidance or predictability.

As a practical matter, employers wishing to avoid this scenario will need to maintain clear separation between their own employees and temporary employees to ensure as little similarity between the groups as possible in terms of supervision, working conditions, integration/interchange, work location, and skills and duties. The difficulty is that maintaining adequate differences between temporary agency employees and regular employees in these areas often defeats the purposes and efficiencies associated with the use of temporary employees who, by design, often work side-by-side with regular employees to supplement the workforce. Employers who are unable to adequately maintain sufficient distinctions between their own employees and contingent workers in these areas will need to be prepared for the possibility that contingent worker organizing may lead to organization of the entire workforce in a combined unit, and must react to such organizing efforts as they would to those involving their own employees.


1 343 NLRB 659 (2004).

2 364 NLRB No. 39 (July 11, 2016).

3 362 NLRB No. 186 (Aug. 27, 2015).

4 Notably, by the time this case made its way to the Board, the temporary labor provider had moved to dismiss the petition on the grounds it was moot, as it no longer furnished workers to the site in question, had not done so for over three years, and never expected to do so again. Despite this evidence, the Board went ahead and announced its new rule, without commenting on whether the matter still involved a live dispute.

5 331 NLRB 1298 (2000).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions