United States: NLRB Strikes Down Employer Veto Of Combined Leased And Regular Employee Bargaining Units: What Should Employers Do Now?

Last Updated: July 15 2016
Article by Daniel Altchek

One year after the National Labor Relations Board's ("NLRB" or the "Board") major expansion of its joint employer standard in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015) ("BFI"), the NLRB has issued yet another decision that could have a dramatic impact on employers who engage workers through staffing companies, employee leasing companies, temporary agencies and the like. The latest decision, Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) ("Miller & Anderson"), will further enhance unions' ability to organize workers supplied by staffing companies and could place many employers in unexpected and unintended bargaining relationships.


Miller & Anderson concerned an employer that had its own employees (the "user" employer) and also was an undisputed joint employer of workers supplied by a staffing company (the "supplier" employer). The question presented by the case was whether the user's solely employed workers and those workers it jointly employed (along with the supplier) must obtain employer consent if they wish to be represented in a single unit for purposes of collective bargaining.

The relevant background for Miller & Anderson starts with the Board's decision in M.B. Sturgis, 331 NLRB 1298 (2000) ("Sturgis"). In Sturgis, the Board reviewed a somewhat convoluted line of its own precedent and held that the National Labor Relations Act ("NLRA") did not require employer consent for the solely and jointly employed workers to be combined in a single bargaining unit, provided that both groups of employees shared a community of interest with one another under the Board's traditional test for determining appropriate units.

Four years later, the Board reversed course in Oakwood Care Center, 343 NLRB 659 (2004) ("Oakwood"), overturning Sturgis as a matter of both statutory interpretation and sound national labor policy. Essentially, the Board held that the NLRA did not permit elections in units encompassing the employees of more than one employer (i.e., a user employer and a supplier employer) absent the employers' consent, and that the bargaining structure contemplated by Sturgis was highly impractical, leading to conflicts among the various employer and employee groups involved in the process. Thus, from 2004 until now, a union could not seek to represent a single bargaining unit combining both a user employer's solely employed workers and those workers it jointly employed with a supplier unless the employer consented.

In Miller & Anderson, the Board overruled Oakwood and effectively returned to the Sturgis rule. As a result, employer consent is no longer necessary for a union to represent both solely employed and jointly employed workers in a single bargaining unit (again, provided both groups of employees meet the NLRB's traditional community of interest test). The Board also addressed the scope of the respective bargaining obligations for the user employer and the supplier employer in a combined unit. The Board held that the user employer has an obligation to bargain over all terms and conditions of the employees it solely employs, while its bargaining obligation for the jointly employed workers extends only to those terms and conditions which it possesses the authority to control. Similarly, for the supplier employer, the duty to bargain covers only the jointly employed workers and extends only to the terms and conditions that it possesses the authority to control. The Board also noted that its decision would not disturb the ability of the solely and jointly employed workers to organize separately, if they choose to do so.

In explaining the rationale for its decision, the Board reaffirmed its remarks in BFI about the explosive growth in the use of contingent workforces and the "massive changes" experienced by the temporary staffing and permanent employee leasing industry since 1990. Interestingly, one of the justifications offered by the Board for its decision was the increased bargaining power of a combined unit of solely and jointly employed workers, compared to the diminished economic strength that the employees would have in separate units despite their shared community of interest.

Implications for Employers

Whether one views this as another instance of a partisan NLRB tilting the playing field to facilitate unions' organizing efforts, or as another step in updating the law to reflect the increasing prevalence of "fragmented" workplaces in today's economy, there is no questioning the significance of the changes wrought by BFI and now Miller & Anderson. The former decision greatly expanded the scope of the NLRB's joint employer standard, exposing a broad swath of companies to joint employer status under the NLRA. Now, under Miller & Anderson, any company ensnared by the expansive BFI joint employer standard – i.e., companies with joint employer relationships with their labor suppliers – could be compelled to bargain with unions representing both their own employees and the supplied employees in a single unit.

This stunning new reality begs the question – what is an employer to do? While the full extent of BFI's impact remains to be seen, the Board's latest decision emphasizes the importance of reviewing all prospective and existing business arrangements that could give rise to a joint employer determination, and giving consideration to modifying the terms of those arrangements to mitigate that risk. Of course, in many instances operational and other business realities make it impossible to avoid a joint employer relationship. In those circumstances, both employers should focus on the community of interest issue because even under Miller & Anderson the combined unit of solely and jointly employed workers will not be permitted if there is not a community of interest between the two groups. Employers who seek to avoid a combined unit should consider whether it would be possible, and/or desirable, to structure their operations and the terms and conditions of employment for the employees in question in an attempt to prevent a community of interest finding between the solely employed and jointly employed workers. User and supplier employers subject to joint bargaining obligations under Miller & Anderson should also identify which areas of the employment relationship fall under either party's control and begin to evaluate whether those arrangements should be modified to enhance their positions at the bargaining table.

As noted, this is a very recent decision and we will keep you apprised as this area of the law develops.

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