Board Decides Miller & Anderson, Returns to Sturgis Standard

Washington, D.C.—The National Labor Relations Board in a 3-1 decision has returned to the rule established in M.B. Sturgis, Inc., 331 NLRB 1298 (2000) (“Sturgis”) and reversed Oakwood Care Center, 343 NLRB 659 (2004) (“Oakwood”). The decision holds that petitioners seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain employer consent.
The majority held that petitioned-for units combining solely and jointly employed workers of a single user employer must share a community of interest in order for a single unit combining the two to be appropriate. The Board will apply the traditional community of interest factors for determining unit appropriateness.
As outlined in Sturgis, a user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. However, it will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.
The Board has remanded the representation case back to the Agency’s Region 5 Office in Baltimore for further action. 
Board Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion; Member Philip A. Miscimarra dissented.