Hunton Employment & Labor Perspectives

Earlier this week, the NLRB issued yet another troubling decision in the joint employer space, a world the Board already turned upside-down last summer with its landmark Browning Ferris ruling. In Miller Anderson, the Board overturned Bush-era precedent and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees is no longer required to obtain the consent of the employers, provided the proposed bargaining unit is appropriate under “traditional” Board precedent. Under the prior rule established in the Board’s 2004 Oakwood Care decision, the Board would not allow employees from nominally different employers to form a single bargaining unit without consent, because employers who join a multi-employer bargaining unit must all consent to their inclusion (a sound policy given the host of practical and legal variables that can arise when separate employers agree to bargain together).

The Miller & Anderson majority argued that the Oakwood Care rule was not consistent with the NLRA’s preference for encouraging collective bargaining and claimed it was merely “returning” the state of the law to that which existed prior to Oakwood. A closer look, however, reveals the Board has done no such thing. As Member Miscimarra noted in his dissent, the Board’s Miller & Anderson rule will affect far more business relationships than the pre-Oakwood Care rule, for two critical reasons. First, whether employers are deemed joint employers is now subject to the Board’s drastically expanded joint employer test, articulated last summer in Browning Ferris Industries . Thus, business relationships that would never have been subject to joint employer status under prior precedent are now at risk of that status…..making them new targets for bargaining unit formation under the Miller & Anderson rule. Second, the “traditional” Board precedent used to decide whether a proposed bargaining unit is appropriate is now the infamous “overwhelming community of interest standard” articulated in Speciality Healthcare. This standard makes it far more likely that the multi-employer unit proposed by the union will be found appropriate.

It is possible that the new Miller & Anderson standard could be narrowed if the Board’s general joint employer standard articulated in Browning Ferris is rejected by the appellate courts….Browning Ferris itself is pending appeal in the D.C. Circuit.

Regardless, and unfortunately for employers, this decision is just the next in a long line of damaging precedent issued by this Board. We strongly advised employers across all industries to review their third party business relationships for joint employer risk at the time the Board issued Browning Ferris. Miller & Anderson reinforces the need to prioritize that analysis.