Labor Law -- 2016



In re Miller & Anderson   (NLRB)

Defining multi-employer bargaining units

On 09/18/2015, the NAM and coalition associations filed an amicus brief with the NLRB in In re Miller & Anderson. The union in the case filed a petition seeking to represent a “multi-employer" bargaining unit consisting of employees from Miller & Anderson, a mechanical contractor, and temporary employees provided to Miller & Anderson by the staffing company Tradesman International. In the Bush-era decision Oakwood Care Center, the Board held that multi-employer units are only appropriate where both employers consent to that arrangement. The employers did not do so in Miller & Anderson, so the petition was dismissed by the regional director. The union appealed to the Board, which granted review to reconsider the Oakwood decision.

The NAM’s brief argued that any bargaining unit seeking to include employees employed solely by one of the constituent entities that comprise the joint employer is, of necessity, a multi-employer unit. In a similar vein, any construction of the statutory bargaining obligation that imposes a duty to bargain with respect to a unit of jointly employed and singly employed employees constitutes, by definition, an obligation to bargain on a multi-employer basis. The Board recognized these fundamental realities and the statutory limits they impose in Oakwood.

On 7/11/2016, the NLRB decided that the union was not required to obtain consent from both employers. It stated that it would apply traditional community-of-interest factors to determine if such a joint union is appropriate. This ruling will make it easier for unions to organize workers in such joint-employer situations.


Related Documents:
NAM brief  (September 18, 2015)

 


Labor Law --



NLRB v. CNN America, Inc.   (D.C. Circuit)

Joint employer status

For over thirty years, the NLRB found separate businesses to be joint employers only when they shared "direct and immediate control over essential terms and conditions of employment" of a group of employees. In the present case, without explicitly overruling any of its longstanding precedent, the Board infused new “indirect” control factors into its decision, including whether the employer could reimburse overall labor costs or supervise employees, and found CNN to be a joint employer. The result is that CNN now faces extensive liability for charges filed on behalf of employees of another separate and independent company. This outcome is inconsistent with previously settled principles of law and threatens the entire business community with similar arbitrary actions jeopardizing longstanding business relationships.

The NAM filed a brief arguing that the NLRB’s decision represents a significant unexplained departure from longstanding precedent on the issue of joint employer status. By retroactively imposing a joint employer finding on CNN, under circumstances which have long been held not to justify such a finding, the Board has in effect created a new, but unacknowledged standard that threatens many other businesses and industries with significant burdens and uncertainties, and is contrary to the intent of Congress. The joint employer finding is arbitrary and capricious and should be denied enforcement.

The court ruled in favor of CNN in this case in August, 2017. It stated that the NLRB had not explained how the television companies satisfied the traditional “direct and immediate” test for determining joint-employer status. It remanded the case for reconsideration, allowing it to develop a different standard with sufficient explanation to overcome existing precedents. This decision is favorable to manufacturers and helps to limit the expansion of joint employment liability.


Related Documents:
NAM amicus brief  (February 2, 2016)

 

In re Miller & Anderson   (NLRB)

Defining multi-employer bargaining units

On 09/18/2015, the NAM and coalition associations filed an amicus brief with the NLRB in In re Miller & Anderson. The union in the case filed a petition seeking to represent a “multi-employer" bargaining unit consisting of employees from Miller & Anderson, a mechanical contractor, and temporary employees provided to Miller & Anderson by the staffing company Tradesman International. In the Bush-era decision Oakwood Care Center, the Board held that multi-employer units are only appropriate where both employers consent to that arrangement. The employers did not do so in Miller & Anderson, so the petition was dismissed by the regional director. The union appealed to the Board, which granted review to reconsider the Oakwood decision.

The NAM’s brief argued that any bargaining unit seeking to include employees employed solely by one of the constituent entities that comprise the joint employer is, of necessity, a multi-employer unit. In a similar vein, any construction of the statutory bargaining obligation that imposes a duty to bargain with respect to a unit of jointly employed and singly employed employees constitutes, by definition, an obligation to bargain on a multi-employer basis. The Board recognized these fundamental realities and the statutory limits they impose in Oakwood.

On 7/11/2016, the NLRB decided that the union was not required to obtain consent from both employers. It stated that it would apply traditional community-of-interest factors to determine if such a joint union is appropriate. This ruling will make it easier for unions to organize workers in such joint-employer situations.


Related Documents:
NAM brief  (September 18, 2015)

 


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