Employer consent not needed to bargain

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Unions seeking to represent bargaining units with both solely and jointly employed workers will no longer have to obtain consent from both employers, the National Labor Relations Board ruled in July.

In its 3-1 decision, the board held that for bargaining units that include workers solely employed by the company, and those who work at the company but are employed through another entity, consent from both entities is not necessary.

In order for a combined bargaining unit to be appropriate, the board said, the workers simply must share a “community of interest.” 

The employer will then be required to bargain all terms and conditions of employment for the unit's employees that it solely employs and has “the authority to control.”

Healthcare groups, including the American Hospital Association, urged the NLRB to uphold its requirement of consent from both employee groups when a bargaining unit combines both solely and jointly employed workers. 

The issue is especially pertinent in healthcare, the AHA said, since jointly employed contingent workers, such as those employed by staffing agencies “play a vital role in the delivery of patient care.”

“In short, although the two groups of employees may share some interests, their interests on other important subjects diverge sharply,” the AHA said in a brief filed last year. “These non-cohesive units would make bargaining exponentially more difficult and thus increase the risk of potentially disruptive labor disputes.”

The NLRB's decision overturns a 2004 decision, “Oakwood Care Center,” that required consent from both a long-term care facility and a staffing agency before a multi-employer bargaining unit was deemed appropriate.