1. 1 Oakwood Care Center 343 N.L.R.B. No. 76 (2004) Is a proposed bargaining unit that includes or is composed of employees that are employed jointly by a user employer and a supplier employer a multi-employer unit such that the consent of both the user and supplier employers is required for the Board to find the unit appropriate?

2. EVENING NEWS, 154 NLRB 1494, 1965, enf’d, 372 F.2d 569 (6 th Cir., 1967) Either an employer or union may voluntarily withdraw from bargaining on multi- employer/multi-union basis at termination of a collective bargaining agreement No provision for multiemployer bargaining in NLRA - requires original and continuing consent Revocability of multiemployer bargaining agreements likely to increase their incidence An agreement to bargain on a basis other than the legally certified unit must be clear and unequivocal (see, for example, Detroit Newspaper Agency d/b/a Detroit Newspapers, et al, 326 N.L.R.B., No. 64 (1998))

3. 3 Joint Employer Relationship A joint employer relationship exists for one or more employees when the TCE of those employees are jointly determined by more than one employer. –Supplier and user ers would be joint employers if, for example, supplier er determined the wage to be paid and the user employer determined the duties to be performed and provided supervision

4. 4 Employees EVENING NEWS OAKWOOD TYPICAL CASE Employees With consent of both employers Employees supplieruser

5. 5 Previous Cases S.S. Kresge Co., K-Mart Division v. NLRB, 416 F.2d 1225, 6 th Circuit, 1999 –Board certified as appropriate a unit of employees of all licensees in K-Mart store in Jackson, MI Employers were all linked to Kresge the attempt to organize came through K-mart K-mart affected the employment conditions through such things as scheduling, approval of hiring, discipline requirements.

6. 6 Previous Cases (cont.) Greenhoot, Inc. 205 NLRB 250, 1973 –Declines to find appropriate a unit of 14 buildings for which Greenhoot responsible for maintenance and jointly employs building ees with building owner –Each building must be a separate unit Lee Hospital, 300 NLRB 947, 1990 –“as a general rule, the Board does not include employees in the same unit if they do not have the same employer, absent employer consent;” cite to Greenhoot; (subcontractor for hospital anesthesiology services not a joint employer – insufficient control over TCE);

7. 7 Previous Cases (cont.) M.B. Sturgis, 331 N.L.R.B. No. 173 (2000) –Consent of both employers not required to include jointly employed ees in a unit with singly employed ees A joint employer relationship not the same as multi-employer bargaining and the Board will not require the consent of the both employers (supplier and user) in order to find a unit of single-employer employees and joint employer employees appropriate; decision to be based on standard community of interest criteria. “The scope of a bargaining unit is delineated by the work being performed by a particular employer.” Whether the work is performed by solely employed or jointly employee employees, it is done for a single employer. All employees in the unit are employed by the employer –Right to organize should not require the consent of the employer

8. 8 Oakwood Consent of employers required for inclusion of jointly employed employees in the same bargaining unit –Text of the act: “employer unit” the highest legal level of unit determination –Consensual nature of multi-employer bargaining –Difficulty of bargaining in a unit that includes both jointly- and singly-employed employees

9. 9 With Which Legal Analysis of Section 9 do you agree? MAJORITY: “By ignoring the bright line between employer and multiemployer units, Sturgis departed from the statutory directive of Section 9(b) as well as decades of Board precedent. We find that the new approach adopted in Sturgis, however well intentioned, was misguided both as a matter of statutory interpretation and sound national labor policy. Sturgis left in place the fundamental principle that Section 9(b) permits the Board to find multiemployer units appropriate only with the consent of the parties but restricted the situations in which that principle would be applied through a strained interpretation of the phrase “employer unit.” DISSENT:“where one or more supplier employers provides employees to a single user employer at a common worksite, all of the employees at the site work for the user employer.... Hence the unit scope is employerwide. Surely employees who are working side by side, for employers who have voluntarily created that arrangement, should be able to join together in the same bargaining unit, if they choose to. ”

10. 10 Fundamental Questions Should board give greater weight to interest of each joint employer in not being bound in its LR by an entity to which it has not ceded authority or to the interests of ees in having the choice of being represented for CB purposes in a unit of ees with which they have a community of interest? Should the decision be viewed from the perspective of the day-to-day work situation, as employees might view it, or from the perspective of organizational structure, as the employer might view it?

11. 11 Do you agree with the majority on industrial relations? Although Sturgis anticipates that each employer will bargain with respect to employees whom it employs and as to the terms and conditions of employment that it controls, the reality of collective bargaining defies such neat classifications. Two examples illustrate this point. First, the wages paid to the jointly employed employees, which are frequently controlled by the supplier, could certainly have an effect on the negotiation of the wages of the solely employed employees, a matter controlled by the user. Second, the user employer would likely determine the holiday schedule for its facility, but the supplier might control whether the jointly employed employees are paid for those holidays.. The bargaining regime posited in Sturgis also fails to adequately protect employee rights. It combines jointly employed and solely employed employees in a single unit, with a single union negotiating with two different employers, each of which controls only a portion of the terms and conditions of employment for the unit. Such a structure subjects employees to fragmented bargaining and inherently conflicting interests, a result that is inconsistent with the Act’s animating principles.... For example, in many situations, the wages of the supplied employees are set by the supplier (A), and the wages of the solely employed employees are set by the user (B). The result is that the wages of the employees of A/B may be traded away, in bargaining, for the sake of employees of B, or vice-versa.

12. 12 Do you agree with the disent on industrial relations? Our colleagues argue that under Sturgis the resulting “bargaining structure... gives rise to significant conflicts among the various employers and groups of employees participating in the process.” They cite the prospect that the employers involved would be forced to “negotiat[e] with one another as well as with the union,” or that the interests of the solely or the jointly employed group of employees “may be traded away” for the other’s, with resulting “fragmentation” of bargaining.... The majority also posits several examples of such “conflicts.” But these conflicts are entirely hypothetical. Neither the majority nor the employer parties have cited evidence that any Sturgis unit has created such conflicts or disrupted a bargaining process. Regardless, the solution the majority endorses—making it virtually impossible for certain workers to organize—is worse than the supposed problem.... However, even assuming that the “conflicts” posited by the majority did arise, they would not differ from the conflicts that have always existed in any setting where joint or multiple employers bargain jointly, or even (with respect to inter-employee conflicts) in the setting of a single employer. Employees are always required to rank their interests and to resolve competing interests between employee sub-groups. That this might occur in Sturgis units, too, is no reason to prevent employees from choosing them.

13. 13 With Whom do you Agree on General Principles of NLRA? Majority: “In order for employees to enjoy the full prospect of effective representation, the Act contemplates that employees be grouped together by common interests and by a common employer. The nonconsensual mixing of employees of different employers vitiates that basic principle.” Dissent: “The Board now effectively bars yet another * group of employees—the sizeable number of workers in alternative work arrangements—from organizing labor unions, by making them get their employers’ permission first. That result is surely not what Congress envisioned when it instructed the Board, in deciding whether a particular bargaining unit is appropriate, “to assure to employees the fullest freedom in exercising the rights guaranteed by th[e] Act.” –*Board had previously found that graduate assistants and disabled workers in rehab environments not employees

14. 14 NOTE: Board decisions often include a blend legal interpretation and industrial relations/labor relations considerations.