One more NLRB overruling is coming

My view:  It's all about "temps." The NLRB's announcement that it wants briefs from the parties and from amici is a tip-off that they will overrule Oakwood Care Center343 NLRB 659 (2004), and return to the rule of M.B. Sturgis331 NLRB 1298 (2000). In Miller & Anderson, pending at the NLRB, you have three groups of employees and the Sheet Metal Workers Union wants them all to be part of the same bargaining unit. The three groups are those who are: (1) employed by Miller & Anderson, (2) employed by Tradesmen International (a temp staffing organization), and (3) jointly employed by Miller & Anderson and Tradesmen International.

Current Board policy is that for these three groups of employees to be in the same bargaining unit it requires the consent of both employers. Otherwise, they're in separate units. That's Oakwood Care Center.

Prior policy was that the groups could be combined even without employers' consent. That was M.B. Sturgis.

The outcome seems inevitable, given the current makeup of the NLRB, but here are the questions the NLRB wants to be briefed:

  • 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 Center343 NLRB 659 (2004), overruling M.B. Sturgis331 NLRB 1298 (2000)?
  • 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?
  • If the Board decides not to adhere to Oakwood Care Center, should the Board return to the holding of Sturgis, which permits bargaining units that include 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?