Miller & Anderson, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 2016

364 NLRB No. 39 (N.L.R.B. 2016)

364 NLRB No. 39
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Miller & Anderson, Inc. and Tradesmen Internation-
al and Sheet Metal Workers International Asso-
ciation, Local Union No. 19, AFL–CIO. Case
05–RC–079249
July 11, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, AND MCFERRAN
I. INTRODUCTION
The fundamental issue raised by the Petitioner’s re-
quest for review is whether under the National Labor
Relations Act (“the Act”) the employees who work for a
user employer—both those employees the user alone
employs and those employees it jointly employs (along
with a supplier employer)—must obtain employer con-
sent if they wish to be represented for purposes of collec-
tive bargaining in a single unit, even if both groups of
employees share a community of interest with one anoth-
er under the Board’s traditional test for determining ap-
propriate units.1
Anyone familiar with the Act’s history might well
wonder why employees must obtain the consent of their
employers in order to bargain collectively. After all,
Congress passed the Act to compel employers to recog-
nize and bargain with the designated representatives of
appropriate units of employees, even if the employers
would prefer not to do so. But most recently in Oakwood
Care Center, 343 NLRB 659 (2004) (“Oakwood”), the
Board held that bargaining units that combine employees
who are solely employed by a user employer and em-
ployees who are jointly employed by that same user em-
ployer and an employer supplying employees to the user
employer constitute multi-employer units, which are ap-
propriate only with the consent of the parties. Id. at 659.
The Oakwood Board thereby overruled M. B. Sturgis,
Inc., 331 NLRB 1298 (2000) (“Sturgis”), which had held
that the Act permits such units without the consent of the
user and supplier employers, provided the employees
share a community of interest. Sturgis, 331 NLRB at
1304–1308.
The Petitioner requests that the Board overturn
Oakwood and return to the rule of Sturgis in its request
for review of the Regional Director’s administrative dis-
missal of its petition seeking to represent a unit of all

1 Consistent with previous Board decisions, this decision refers to
the company that supplies employees as a “supplier” employer and the
company that uses those employees as a “user” employer.
sheet metal workers employed by Miller & Anderson,
Inc. and/or Tradesmen International as either single em-
ployers or joint employers on all job sites in Franklin
County, Pennsylvania.2
We granted review to consider the important issue
raised by the Petitioner. Following our grant of review,
we issued a Notice and Invitation to File Briefs
(“NIFB”). The NIFB invited the parties and interested
amici to address one or more of the following questions:
1. How, if at all, have the Section 7 rights of employ-
ees in alternative work arrangements, including tempo-
rary employees, part-time employees and other contin-
gent workers, been affected by the Board’s decision in
Oakwood Care Center, 343 NLRB 659 (2004), over-
ruling M.B. Sturgis, 331 NLRB 1298 (2000)?
2. Should the Board continue to adhere to the holding
of Oakwood Care Center, which disallows inclusion of
solely employed employees and jointly employed em-
ployees in the same unit absent the consent of the em-
ployers?
3. If the Board decides not to adhere to Oakwood Care
Center, should the Board return to the holding of Stur-
gis, which permits units including both solely em-
ployed 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?
The briefs filed in response to the NIFB largely mirror
the reasoning of the dueling majority and dissenting
opinions in Oakwood and Sturgis. In short, the briefs
that favor adhering to Oakwood largely argue that its
holding is compelled by the Act and that returning to
Sturgis would be unwise as a policy matter in any event.3
On the other hand, the briefs that favor returning to Stur-
gis argue that the Act does not preclude the Board from
returning to Sturgis, and that the Board should do so to

2 The Regional Director’s letter administratively dismissing the peti-
tion noted that both Miller & Anderson and Tradesmen International
declined to consent to a combined unit.
3 Tradesmen International, the American Hospital Association and
the Federation of American Hospitals, the American Staffing Associa-
tion, Associated Builders and Contractors, Inc., the Chamber of Com-
merce of the United States of America, the Coalition for a Democratic
Workplace and the National Association of Manufacturers, the Council
on Labor Law Equality, and the National Right to Work Legal Defense
Foundation, Inc. have filed briefs urging the Board to adhere to
Oakwood. Although the briefs also argue that the Board should not
return to Sturgis even if the Board decides to overturn Oakwood, they
do not explain precisely what the Board should do in that event.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
effectuate the Act’s fundamental policies that are plainly
frustrated by Oakwood.4
After carefully considering the briefs of the parties and
amici and the views of our dissenting colleague, we con-
clude that Sturgis is more consistent with our statutory
charge. Accordingly, we overrule Oakwood and return
to the holding of Sturgis. Employer consent is not neces-
sary for units that combine jointly employed and solely
employed employees of a single user employer. Instead,
we will apply the traditional community of interest fac-
tors to decide if such units are appropriate. Sturgis, 331
NLRB at 1308. We also agree with the Sturgis Board’s
clarification that there is no statutory impediment to pro-
cessing petitions that seek units composed only of the
employees supplied to a single user, or that seek units of
all the employees of a supplier employer and name only
the supplier employer. Ibid. We remand the case to the
Regional Director for further proceedings consistent with
this Decision.
II. OVERVIEW OF PRECEDENT
A. Board Precedent Prior to Sturgis
A review of Board precedent demonstrates that units
combining employees solely employed by a user em-
ployer and employees jointly employed by that same user
employer and a supplier employer are not novel. In the
early years of the Act’s administration and continuing for
4 decades, the Board routinely found units of the em-
ployees of a single employer appropriate, regardless of
whether some of those employees were jointly employed
by other employers. The Board used its traditional
community of interest test to decide whether such units
were appropriate. Significantly, the Board identified no
statutory impediment to such units, and the issue of em-
ployer consent was neither raised nor discussed.
Thus, in the 1940’s, the Board included employees
who worked for concessionaires in a unit of the employ-
ees of the retail department store where the concessions
were located. Some of these employees were referred to
as “employees” of the concessionaire or as being “re-
tained” by the concessionaire to work in the store. See
Louis Pizitz Dry Goods Co., 71 NLRB 579 (1946); Tay-
lor’s Oak Ridge Corp., 74 NLRB 930 (1947); Denver
Dry Goods Co., 74 NLRB 1167 (1947). Although these
concessionaires operated whole departments, the Board

4 The Petitioner, the General Counsel, the American Federation of
Labor and Congress of Industrial Organizations and North America’s
Building Trades Unions, Construction and Master Laborers’ Local
Union 11, affiliated with the Laborers’ International Union of North
America, the Service Employees International Union, and the Universi-
ty of Wisconsin-Extension, Labor Education Department, the School
for Workers have filed briefs urging the Board to overturn Oakwood
and to return to Sturgis.
included the employees in these departments in the unit
with the solely employed department store employees
where the evidence demonstrated that the department
store possessed sufficient control over the former to be
deemed their employer, and where those employees
shared a community of interest with the store’s solely
employed employees. On the other hand, the Board ex-
cluded employees in the departments operated by the
concessionaires pursuant to lease or similarly-styled ar-
rangements if they were solely employed by the conces-
sionaires. In these cases, the Board noted that they did
not share “sufficient interests” with the employees in the
other departments to be joined for collective bargaining.
See J. M. High Co., 78 NLRB 876, 878 (1948); and
Block & Kuhl Department Store, 83 NLRB 418, 419–420
(1949). In the 1950s, the Board continued to include the
employees in the leased departments in units with the
store’s employees. See, e.g., Stack & Co., 97 NLRB
1492, 1493–1494 (1952).
In the 1960s, the Board recognized that control over
employees in leased departments may be shared between
user and supplier employers and, hence, the employees
may be jointly employed. See Frostco Super Save
Stores, Inc., 138 NLRB 125 (1962);5 Spartan Depart-
ment Stores, 140 NLRB 608, 610–611 fn. 8 (1963).
With this shared employment relationship, the Board
continued to sanction units combining solely employed
department store employees with jointly employed em-
ployees working in the leased departments, applying the
community of interest test to decide whether jointly em-
ployed employees should be included in the unit. See
Frostco, 138 NLRB at 129; Thriftown, Inc., 161 NLRB
603 (1966); and Jewel Tea Co., 162 NLRB 508 (1966).
In Thriftown, the Board majority included jointly em-
ployed employees of those leased departments in the
same bargaining unit with the solely employed depart-
ment store employees. Although Chairman McCulloch

5 The circumstances in Frostco illustrate (1) that the Board found no
impediment to combining employees of solely employed/jointly em-
ployed employees; and (2) that the Board utilized a community of
interest analysis in determining appropriate units in such instances. In
Frostco, the Retail Clerks sought an overall store unit of all employees
of the Sav-Mart store. The Meat Cutters sought a unit of the employees
in the grocery and meat department operated by Frostco. The Culinary
Workers sought employees operating popcorn concessions, who were
also employed by yet another company. The Board found that Sav-
Mart was a joint employer with each licensee. Yet the Board found a
storewide unit, including the jointly employed employees, was appro-
priate. In addition, the Board permitted the Frostco employees to de-
cide whether they wished to be represented in the overall unit or sepa-
rately “[i]n view of all the indicia of separateness” such employees
enjoyed. The Board found, however, that the jointly employed em-
ployees sought by the Culinary Workers “do not comprise a group with
sufficiently disparate employment interests” and the Board dismissed
the petition for a separate unit of these employees. 138 NLRB at 129.
MILLER & ANDERSON, INC. 3
and Member Fanning, in dissent, objected to the joint
employer finding, they expressed no concern over the
inclusion of the jointly employed employees in the unit
with the solely employed store employees. 161 NLRB at
608. Compare United Stores of America, 138 NLRB
383, 385 (1962), in which a separate unit of jointly em-
ployed grocery and meat department employees was
found appropriate because of the “indicia of separate-
ness” from solely employed storewide employees.
In 1969, the United States Court of Appeals for the
Sixth Circuit rejected an employer’s challenge to a
storewide unit that included jointly employed employees
supplied by several employers in a unit with Kresge’s
employees. S. S. Kresge Co. v. NLRB, 416 F.2d 1225
(6th Cir. 1969), enfg. in relevant part, S. S. Kresge Co.,
169 NLRB 442 (1968). The employer contended that “to
compel unwilling employers to bargain as joint employ-
ers will disrupt the collective bargaining process because
each licensee may have independent ideas about appro-
priate labor policy.” 416 F.2d at 1231. The court specif-
ically rejected this contention, relying on a similar case
from the U.S. Court of Appeals for the Ninth Circuit
which rejected an employer’s contention that a userwide
(storewide) unit would have a “highly disruptive effect
upon the store’s operation, [and] will prejudice the licen-
sees and not produce sound and stable collective bargain-
ing relationships.” See Gallenkamp Stores Co. v. NLRB,
402 F.2d 525, 531 (9th Cir. 1968). The Gallenkamp
court also had rejected the employer’s contention that the
jointly employed employees of one the licensees
“lack[ed] a sufficient community of interest” with the
store employees to be included in the unit. Id.
In short, as of the end of the 1960s, no Board or court
decision had barred, absent employer consent, units
combining solely employed employees and jointly em-
ployed employees. To the contrary, the Board and the
courts perceived no statutory impediments to units com-
bining solely employed employees and jointly employed
employees. Inclusion of the jointly employed employees
was subject only to the Board’s traditional community of
interest standards.6
During the next 2 decades, the Board continued to find
appropriate collective bargaining units that combined
employees solely employed by a single user employer
and employees jointly employed by that same user em-
ployer and a supplier employer, provided the employees

6 In 1970, the United States Court of Appeals for the Fifth Circuit
pointed out that the Board “often” had found appropriate units of the
user’s employees and licensees’ employees, especially when the user
employer exercised substantial control over the employment practices
of the licensees and “was in practical effect a joint-employer.” NLRB v.
Zayre Corp., 424 F.2d 1159, 1165 (5th Cir. 1970).
shared a community of interest under the Board’s tradi-
tional test for determining unit appropriateness. For ex-
ample, in Globe Discount City, 209 NLRB 213 (1974),
the Board found that the Regional Director erred in ex-
cluding jointly employed employees from a unit of
Globe’s employees (and other jointly employed employ-
ees). The Board found that the jointly employed em-
ployees shared “a substantial community of interest”
with the solely employed and other jointly employed
store employees and that a unit combining them was an
appropriate unit.7
Similarly, the U.S. Court of Appeals for the Seventh
Circuit found no impediment to bargaining in units of
these mixed groups of employees absent employer con-
sent. Thus, in NLRB v. Western Temporary Services,
Inc., 821 F.2d 1258, 1265 (7th Cir. 1987), the court
found that a user employer, Classic, was not prejudiced
by the inclusion—in a unit with Classic’s solely em-
ployed employees—of the part-time employees supplied
to it by Western Temporary Services (“Western”) whom
Classic jointly employed (along with Western).
However, the Board’s treatment of units combining
jointly employed and solely employed user employees
abruptly changed in Lee Hospital, 300 NLRB 947
(1990), without any explanation or even so much as an
acknowledgement from the Board that it was breaking
with precedent. The issue arose there in a convoluted
manner. The petitioner sought a unit limited to certified
registered nurse anesthetists (CRNAs) who worked in a
department operated by Anesthesiology Associates, Inc.
(AAI) for the hospital.8 The Regional Director found
that CRNAs did not constitute an appropriate unit sepa-
rate from other hospital professionals, because under the
then applicable “disparity of interest” test applied to
health care institutions, the CRNAs possessed no sharper
than usual differences from the other professionals em-
ployed by the hospital. Accordingly, the Regional Direc-
tor dismissed the petition. The petitioner sought review
of this decision arguing, among other things, that the
CRNAs were jointly employed by Lee Hospital and AAI,
and that this joint employer relationship further evi-
denced a disparity of interest between the CRNAs and

7 In several unfair labor practice cases, the Board also imposed a
bargaining obligation on the joint employers of employees in contrac-
tual units that included employees employed by only one of the joint
employers. See, e.g., Sun-Maid Growers of California, 239 NLRB
346, 352–353 (1978), enfd. 618 F.2d 56, 59–60 (9th Cir. 1980); and
U.S. Pipe & Foundry Co., 247 NLRB 139, 142 (1980). The Board
found that “no policy of the Act” was offended by imposing a bargain-
ing obligation “for that portion of the overall unit.” Sun-Maid Grow-
ers, 239 NLRB at 353.
8 The Hospital had contracted with AAI for the operation of the an-
esthesiology department and recovery room.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the other hospital professionals who were not jointly em-
ployed.
On review, the Board, unlike the Regional Director,
concluded that the joint employer issue had to be re-
solved to determine whether a separate CRNA unit was
appropriate. This was so because, according to the
Board, “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[.] Thus, if AAI is a
joint employer, the CRNAs could be included in the unit
with other professionals employed by Lee Hospital only
with the hospital’s consent[,] and [i]t is clear that Lee
Hospital does not consent to such an arrangement.” Id.
at 948 (footnote omitted).9
In announcing this “general rule,” however, Lee Hos-
pital entirely ignored the Board’s routine practice of
finding appropriate units that combined employees solely
employed by a user employer and employees jointly em-
ployed by that same user employer and a supplier em-
ployer. Lee Hospital also failed to offer any rationale in
support of its supposed general rule. Instead, it simply
cited in a footnote (300 NLRB at 948 fn. 12) a single
case—Greenhoot, Inc., 205 NLRB 250 (1973)—in sup-
port of the supposed general rule.
The Board’s decision in Greenhoot, however, had left
undisturbed—indeed it had said nothing about—the
Board’s long-standing practice of finding appropriate
units that combined employees solely employed by a
user employer and employees jointly employed by that
same user employer and a supplier employer absent em-
ployer consent.10 Instead, Greenhoot addressed the en-
tirely different situation where a union seeks to represent
a unit of employees who perform work for, and who are
employed by, different user employers.11

9 The Board ultimately did not apply this rule in Lee Hospital be-
cause it concluded that Lee Hospital and AAI were not joint employers
of the CRNAs at issue.
10 Following Greenhoot, the Board, with court approval, continued
to find appropriate units that combined employees solely employed by
a user employer and employees jointly employed by that same user
employer and a supplier employer, without suggesting that they impli-
cated the consent requirement of multi-employer bargaining. See, e.g.,
NLRB v. Western Temporary Services, Inc., supra, 821 F.2d at 1265
(finding no impediment to bargaining in units of these mixed groups of
employees absent employer consent) (enfg. 278 NLRB 469 (1986)).
11 The issue presented there involved a multi-employer bargaining
unit where the petitioner sought a unit consisting of the engineers and
maintenance employees at 14 separately owned office buildings. The
Board found that “Greenhoot and each of the Building owners are joint
employers at each of the respective buildings.” Greenhoot, Inc., 205
NLRB at 251. The Board further found that the petitioned-for unit
composed of employees working at, and employed by, each of the
separately owned buildings constituted a multi-employer unit. As there
was no consent as required for a multi-employer unit, the Board found
“separate units [of the engineers and maintenance men] at each loca-
Subsequently, the Board applied the “rule” of Lee
Hospital to prohibit any unit that would combine jointly
employed employees with solely employed employees of
one of the joint employers, absent consent of both em-
ployers. See, e.g., International Transfer of Florida,
Inc., 305 NLRB 150 (1991); and Hexacomb Corp., 313
NLRB 983 (1994). These cases applying Lee Hospital
did not discuss, explain, or rationalize the “rule.”
B. Sturgis
A decade later, the Board reexamined Lee Hospital in
Sturgis. The Regional Director for Region 14 had issued
a Decision and Direction of Election in M. B. Sturgis,
Inc., Case 14–RC–11572, in which he found appropriate
a petitioned-for unit consisting of all employees em-
ployed by M. B. Sturgis, with the exception of 10–15
“temporary” employees used by Sturgis and supplied by
Interim, Inc. The Regional Director found that the tem-
porary employees were jointly employed by Sturgis and
Interim, but that under Lee Hospital, they could not be
included in the same unit with employees employed sole-
ly by Sturgis absent the consent of both Sturgis and Inter-
im. Sturgis, 331 NLRB at 1298–1299.12
On review, the Board concluded that Lee Hospital had
improperly extended the multi-employer analysis in
Greenhoot to situations where a single user employer
obtains employees from a supplier employer and a union
is seeking to represent both those jointly employed em-
ployees and the user’s solely employed employees in a
single unit. The Board rejected the “faulty logic” of Lee
Hospital that a user employer and a supplier employer—
both of which employ employees who perform work on
behalf of the same user employer pursuant to the user’s
arrangement with the supplier—are equivalent to the
completely independent user employers in multi-
employer bargaining units. Id. at 1298, 1305. The Board

tion” to be appropriate, rather than the combined unit sought by the
petitioner. Id. Greenhoot therefore stands for the proposition that
where two or more otherwise separate user employers obtain employ-
ees from the same supplier employer, and a union is seeking to repre-
sent the employees in a single unit for the purposes of collective bar-
gaining with all the user employers, the unit sought is a multi-employer
unit.
12 In the meantime, the Acting Regional Director for Region 9 had
issued a Decision and Order in Jeffboat Division, Case 9–UC–406, in
which he dismissed a unit clarification petition by which the petitioning
union had sought to clarify the bargaining unit of Jeffboat employees
covered by its existing collective-bargaining agreement with Jeffboat to
include employees supplied by T.T. & O. Enterprises (TT&O) for use
by Jeffboat. The Acting Regional Director found that Jeffboat and
TT&O were joint employers of the TT&O-supplied employees but that
Greenhoot and Lee Hospital precluded the inclusion of the jointly
employed employees in the existing unit, because Jeffboat and TT&O
would not consent to joint bargaining. See Sturgis, 331 NLRB at 1299.
The Board granted review in both Sturgis and Jeffboat.
MILLER & ANDERSON, INC. 5
found that employer consent is not required for a unit
combining the employees solely employed by a user em-
ployer and the employees jointly employed by that same
user employer and a supplier employer, because such a
unit is an “employer unit” given that all the employees in
such a unit perform work for the user employer and all
are employed by the user employer. Id. at 1304–1305.
The Board held that it would apply traditional communi-
ty of interest factors to decide if such units are appropri-
ate. Id. at 1308. Accordingly, the Board remanded the
cases to the Regional Directors to decide the unit ques-
tions without regard to the restriction imposed by Lee
Hospital. Ibid.13
C. Oakwood
Four years later, however, the Board changed course.
In Oakwood, the Regional Director for Region 29 had
issued a Decision and Direction of Election, in which he
found appropriate a petitioned-for unit of non-
professional employees at Oakwood’s residential care
facility. 343 NLRB at 659. The petitioned-for unit in-
cluded both the employees who were solely employed by
Oakwood and the employees who were jointly employed
by Oakwood and its supplier employer, a personnel staff-
ing agency. The parties stipulated that under Sturgis, the
petitioned-for unit of the employees solely employed by
Oakwood and the jointly employed supplier employees
(who wore identification tags that were issued by
Oakwood and that identified them as employees of
Oakwood’s facility) was appropriate. However,
Oakwood urged the Board to reverse Sturgis, contending
that it was wrongly decided. Ibid.
After granting review, the Board concluded that Stur-
gis was misguided both as a matter of statutory interpre-
tation and sound national labor policy. Id. at 662. The
Board concluded that Congress had not authorized the
Board to direct elections in units encompassing the em-
ployees of more than one employer, and that the bargain-
ing structure contemplated by Sturgis gives rise to signif-
icant conflicts among the various employers and groups
of employees participating in the process. Id. at 661–
663.
III. DISCUSSION
With the foregoing review of the Board’s and the
courts’ historical treatment of combined units of jointly

13 Sturgis also clarified that employer consent is not required when a
petition seeks a unit only of the employees supplied to a single user, or
seeks a unit of all the employees of a supplier employer and names only
the supplier employer. Id. at 1308. The Sturgis Board, however, reaf-
firmed the decision in Greenhoot insofar as it requires employer con-
sent for the creation of true multi-employer units involving employees
who do not share a user employer in common and where the union
seeks to bargain with those separate user employers. Id. at 1298.
employed and solely employed employees in mind, we
turn to our own analysis of the issue. We begin, as we
must, with the statute itself. Section 1 of the Act sets
forth the Congressional findings that the denial by some
employers of the right of employees to organize and bar-
gain collectively and the inequality of bargaining power
between employers and employees, who do not possess
full freedom of association, lead to industrial strife that
adversely affects commerce. Congress therefore de-
clared it to be the policy of the United States to mitigate
or eliminate those adverse effects by “encouraging the
practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of
association, self-organization, and designation of repre-
sentatives of their own choosing, for the purpose of ne-
gotiating the terms and conditions of their employment
or other mutual aid or protection.” 29 U.S.C. § 151. In
short, the central purpose of the Act is “to protect and
facilitate employees’ opportunity to organize unions to
represent them in collective bargaining negotiations.”
American Hospital Assn. v. NLRB, 499 U.S. 606, 609
(1991). Thus, Section 7 of the Act grants employees “the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection[.]” 29 U.S.C. §157.
Section 9 of the Act, in turn, speaks to the implementa-
tion of employees’ right to bargain collectively through
representatives of their own choosing. Section 9(a) thus
provides that representatives “designated or selected for
the purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employ-
ees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment,
or other conditions of employment[.]” 29 U.S.C.
§159(a). And Section 9(b) relevantly provides that “[t]he
Board shall decide in each case whether, in order to as-
sure to employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer
unit, craft unit, plant unit, or subdivision thereof[.]” 29
U.S.C. § 159(b). But neither Section, nor any other por-
tion of Section 914 or the Act itself, explicitly addresses
whether the Board may find appropriate a unit that com-
bines employees solely employed by a user employer and

14 Notably, Sec. 9 expressly deems certain other units not appropriate
for purposes of collective bargaining. See, e.g., Sec. 9(b)(3) (expressly
barring the Board from finding appropriate a unit including guards and
nonguards).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees jointly employed by that same user employer
and a supplier employer.15
That circumstance establishes two important founda-
tions for our consideration of the employer-consent issue.
First, the Act does not compel Oakwood’s holding that
bargaining units combining solely employed and jointly
employed employees are appropriate only with the con-
sent of the user and supplier employers. Second, precise-
ly because the Act does not dictate a particular rule, we
may find that another rule is not only a permissible inter-
pretation of the statute, but also that it better serves the
purposes of the Act. For the reasons explained below,
we find that the Sturgis rule, not requiring employer con-
sent to units combining jointly employed and solely em-
ployed employees of a single user employer, meets both
of those criteria.
A. Sturgis Is Consistent With Section 9(b)
The “exact limits of the Board’s powers” under Sec-
tion 9 and “the precise meaning” of the term “employer
unit” are not defined by the statute. Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 165 (1941). Notably,
however, the statutory definition of the terms “employer”
and “employee” in Sections 2(2) and 2(3) of the Act are
very broad,16 and, as described, Congress’s “statutory
command” to the Board, in deciding whether a particular
bargaining unit is appropriate, is “to assure to employees
the fullest freedom in exercising the rights guaranteed by
th[e] Act[.]” Gallenkamp Stores Co. v. NLRB, supra, 402
F.2d at 532 (quoting Section 9(b)). In that context, we
are persuaded that a unit combining employees solely
employed by a user employer and employees jointly em-
ployed by that same user employer and a supplier em-
ployer logically falls within the ambit of a 9(b) employer
unit. All the employees in such a unit are performing
work for the user employer and are employed within the
meaning of the common law by the user employer.
Thus, the user employer and the supplier employer are
joint employers of the employees referred by the supplier

15 See Chevron, USA, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842–843 (1984).
16 Sec. 2(2) of the Act (29 U.S.C. §152(2)) states that “[t]he term
‘employer’ includes any person acting as an agent of an employer,
directly or indirectly, but shall not include the United States or any
wholly owned Government corporation, or any Federal Reserve Bank,
or any State or political subdivision thereof, or any person subject to
the Railway Labor Act . . ., or any labor organization (other than when
acting as an employer), or anyone acting in the capacity of officer or
agent of such labor organization” (and Sec. 2(1) of the Act (29 U.S.C.
§152(1)) defines the term “person” to include “one or more individuals,
labor organizations, partnerships, associations, corporations, legal
representatives, trustees, . . . or receivers”). Sec. 2(3) of the Act (29
U.S.C. §152(3)) states that “[t]he term ‘employee’ shall include any
employee, and shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise[.]”
to the user for the latter’s use.17 The employees solely
employed by the user employer likewise plainly perform
work for the user employer and are employed by the user
within the meaning of the common law. In sum, a Stur-
gis unit comprises employees who, working side by side,
are part of a common enterprise.
As Sturgis explained,
That a unit of all of the user’s employees, both those
solely employed by the user and those jointly employed
by the user and the supplier, is an “employer unit”
within the meaning of Section 9(b), is logical and con-
sistent with precedent. The scope of a bargaining unit
is delineated by the work being performed for a par-
ticular employer. In a unit combining the user employ-
er’s solely employed employees with those jointly em-
ployed by it and a supplier employer, all of the work is
being performed for the user employer. Further, all of
the employees in the unit are employed, either solely or
jointly, by the user employer. Thus, it follows that a
unit of employees performing work for one user em-
ployer is an “employer unit” for purposes of Section
9(b).
331 NLRB at 1304–1305.
The restrictive view that the Oakwood Board and our
dissenting colleague place on Section 9(b) is based on
the erroneous conception that bargaining in a Sturgis unit
constitutes multi-employer bargaining, which requires
the consent of all parties. However, in the traditional
multi-employer bargaining situation, the employers are
entirely independent businesses, with nothing in common
except that they operate in the same industry. They are
often in competition for work with each other, operate at
separate locations on different work projects, and hire
their own employees.18 Multi-employer bargaining units
are created without regard for any preexisting community
of interest among the employees of the various separate
employers. In fact, the Board developed the consent
requirement in such cases precisely because the employ-
ers at issue were physically and economically separate

17 Under Board precedent, an entity may not be found to be a joint
employer unless, among other things, it is an employer within the
meaning of the common law of the employees in question. See BFI
Newby Island Recyclery, 362 NLRB No. 186, slip op. at 2 (2015)
(“BFI”).
18 In a Sturgis unit, the user and supplier employers are not competi-
tors. As Associated Builders and Contractors, Inc. acknowledges in its
brief, the supplier and user employers “almost always serve different
business purposes. For example, a typical staffing agency’s primary
purpose is to provide labor for its customers to utilize. The user’s
primary purpose is to satisfy its own business objectives, such as
sell[ing] goods or services to a different set of customers.”
MILLER & ANDERSON, INC. 7
from each other, their operations were not intermingled,
and their employees were not jointly controlled.19
In multi-employer bargaining, the unrelated employers
on their own initiative decide to join an employer associ-
ation and bargain through a mutually selected agent to
match union strength and to avoid the competitive disad-
vantages resulting from nonuniform contractual terms.
As an agency relationship cannot be compelled, multi-
employer bargaining is voluntary in nature; unions may
not coerce employers into joining associations which
negotiate labor contracts on behalf of their members.
See generally NLRB v. Truck Drivers Local Union No.
449, IBT, 353 U.S. 87, 94–96 (1957); Florida Power &
Light Co. v. NLRB, 417 U.S. 790, 798, 803 & n.14
(1974); NLRB v. Amax Coal Co., 453 U.S. 322, 335
(1981); Charles D. Bonanno Linen Service, Inc. v.
NLRB, 454 U.S. 404, 412 (1982). Indeed, by conceding
that employer consent is not required when a petition
names two employers and seeks a unit composed of the
employees jointly employed by the two employers,
Oakwood itself recognized that a bargaining unit involv-
ing more than one employer is not ipso facto a “multi-
employer bargaining unit.”
There plainly is a distinction of substance between a
Sturgis unit and a multi-employer bargaining unit. Put
simply, as shown, in a Sturgis unit, all of the employees
are employed by the user employer. Sturgis, 331 NLRB
at 1305. After all, the employees who are solely em-
ployed by the user employer share an employer (the user
employer) with the contingent employees who are jointly
employed by that same user employer and a supplier

19 See, e.g., Chapman Dehydrator Co., 51 NLRB 664, 666–667
(1943) (multi-employer unit not appropriate absent consent, where
there was no evidence of “any managerial interrelationship between
members of the Association,” and employers “operate … as separate
and distinct business organizations with no interchange of employees”);
Sagamore Mfg., 39 NLRB 909, 915–916 (1942) (same result where
employers were “independent and competing” with each other); F. E.
Booth & Co., 10 NLRB 1491, 1496 (1939) (same result where inter-
change of employees between employers was “not effectuated by any
plan of [the union] or through any common agency of the companies”
and “each of the companies hires its own employees as the conditions
of its business require”); Alaska Packers Assn., 7 NLRB 141, 148
(1938) (same result even though “the three companies constitute an
economic [regional industry] aggregate,” because they are “separate
and distinct business organizations”). See also Bull-Insular Line Co., 56
NLRB 189, 193–194 (1944) (Puerto Rico-wide employer unit not ap-
propriate absent consent, but unit of two employers appropriate where
they were “interlocking corporate organizations” and their employees
“together are engaged in various tasks incidental to the loading or un-
loading of cargo vessels at the [two] companies’ piers in the Harbor of
San Juan”). Cf. Rayonier, Inc., 52 NLRB 1269, 1274 (1943) (multi-
employer unit appropriate in view of implied consent through collec-
tive-bargaining history, in contrast to cases where employers are merely
“competing companies not otherwise related except through member-
ship in an [e]mployer [a]ssociation”).
employer.20 Thus, a Sturgis unit fits comfortably within
9(b)’s sanctioning of an “employer unit.” By contrast,
although a multi-employer bargaining unit also involves
more than one employer, there is no common user em-
ployer for all the employees in such a unit.
The legislative history relied on in Oakwood, 343
NLRB at 661, which indicates that “Congress included
the phrase ‘or subdivision thereof’ [in Section 9(b)] to
authorize other units ‘not as broad as ‘employer unit,’ yet
not necessarily coincident with the phrases ‘craft unit’ or
‘plant unit,’” does not persuade us that a single user em-
ployer unit is inappropriate. That Congress sought to
authorize the Board to find appropriate employer sub-
units hardly establishes that Congress sought to disallow
units of employees of a user employer combined with
employees who the user jointly employs with a supplier.
Indeed, our dissenting colleague, like the Oakwood ma-
jority, cites no legislative history expressing disapproval
of such units. The only concern expressed by either the
Wagner Act Congress or the Taft-Hartley Congress with
respect to bargaining units that included more than one
employer was focused on industrywide or anti-
competitive bargaining units and on multiple-worksite
situations.21
Tradesmen, several amici, and our dissenting col-
league nevertheless contend that the Board is precluded
from returning to Sturgis, relying on the following single
phrase from Section 9(b) of the Act to support their ar-
gument:
The Board shall decide in each case whether, in order
to assure to employees the fullest freedom in exercising
the rights guaranteed by this Act, the unit appropriate
for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision
thereof[.]
29 U.S.C. §159(b) (emphasis added). Citing Oakwood, they
reason that because the broadest permissible unit category
listed in Section 9(b) is the “employer unit,” with each of
the other delineated types of appropriate units representing
subgroups of the work force of an employer, “the text of the
Act reflects that Congress has not authorized the Board to
direct elections in units encompassing the employees of
more than one employer.” Oakwood, 343 NLRB at 661.

20 We take this opportunity to reiterate that we will not find any enti-
ty to be a joint employer unless, among other things, it is an employer
within the meaning of the common law. See BFI, 362 NLRB No. 186,
slip op. at 2.
21 1 Leg. Hist. 1300 (NLRA 1935) (1985 reprint), 2 Leg. Hist. 3219–
3221, 3253–3256, 3264–3269 (NLRA 1935) (1985 reprint); 1 Leg.
Hist. 58–61, 117, 299–300, 535–536, 550–551, 584, 612, 636, 643–
644, 663, 672–674 (LMRA 1947) (1985 reprint).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
However, the proponents of this argument put more
weight on those few words than they can reasonably car-
ry. As we have explained, given the broad definition of
“employer” and “employee” in Sections 2(2) and 2(3) of
the Act, along with our statutory charge to afford em-
ployees “the fullest freedom” in exercising their right to
bargain collectively, a combined unit of employees sole-
ly employed by a user employer and employees jointly
employed by that same user employer and a supplier
employer does not fall outside the ambit of a Section 9(b)
“employer unit,” because all work is performed for the
user employer and all employees are employed, either
solely, or jointly, by the user employer. And, as we ex-
plain below, finding such a unit to be appropriate is re-
sponsive to Section 9(b)’s statutory command and effec-
tuates fundamental policies of the Act. Accordingly, we
conclude that the Act does not preclude us from return-
ing to Sturgis.22
B. Sturgis Effectuates Fundamental Policies of the Act
that Oakwood Frustrates
Sturgis is manifestly more responsive than Oakwood to
Section 9(b)’s “statutory command” to the Board, in de-
ciding whether a petitioned-for bargaining unit is appro-
priate, “‘to assure to employees the fullest freedom in
exercising the rights guaranteed’ by th[e] Act[.]”
Gallenkamp Stores Co. v. NLRB, supra, 402 F.2d at 532
(quoting Section 9(b)). The Board has recognized that
“[a] key aspect of the right to ‘self-organization’ is the
right to draw the boundaries of that organization—to
choose whom to include and whom to exclude.” Special-
ty Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934, 941 fn.18 (2011) (“Specialty Healthcare”),
affd sub. nom, Kindred Nursing Centers East, LLC v.
NLRB, 727 F.3d 552 (6th Cir. 2013). The Sturgis ap-
proach honors that principle because it does not require
employees to obtain employer permission before they
may organize in their desired unit. Nor does Sturgis
mandate any particular bargaining unit for the contingent

22 Equally unavailing is our dissenting colleague’s reliance on Sec.
8(a)(5) of the Act, which makes it an unfair labor practice for an em-
ployer to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of Sec. 9(a). The first sentence of
Sec. 9(a), which sets forth the right of employees to have an exclusive
bargaining representative, does not even refer to an “employer.” More-
over, as discussed below, if a union is certified as the collective-
bargaining representative of a Sturgis unit, each employer is obligated
to bargain only over the employees with whom it has an employment
relationship. Accordingly, the supplier employer cannot possibly be
found to have violated Sec. 8(a)(5) by refusing to bargain over terms
and conditions of employment of the employees solely employed by the
user employer. Nor, for similar reasons, does Sec. 8(b)(3) advance the
dissent’s case. A union cannot be deemed to have violated Sec. 8(b)(3)
by refusing to bargain with an employer regarding employees whom
that employer does not employ.
employees (who are jointly employed by a user employer
and a supplier employer) and the employees solely em-
ployed by that same user employer. Rather, Sturgis
leaves the employees free to choose the unit they wish to
organize, provided their desired unit is appropriate under
the Board’s traditional test for determining unit appropri-
ateness. Thus, Sturgis permits the jointly employed con-
tingent employees to organize in bargaining units with
their coworkers who are solely employed by the user
employer if they share the requisite community of inter-
est, while also leaving both groups free to organize sepa-
rately if they would prefer to do so.
In contrast, Oakwood denies employees in an other-
wise appropriate unit full freedom of association. Thus,
even if the jointly employed employees and their
coworkers who are solely employed by the user employ-
er wish to be represented for purposes of collective bar-
gaining in the same unit, and even if both groups share a
community of interest with one another, Oakwood pre-
vents them from so organizing unless the employers con-
sent. Requiring employees to obtain employer permis-
sion to organize in such a unit is surely not what Con-
gress envisioned when it instructed the Board, in decid-
ing whether a particular bargaining unit is appropriate,
“to assure to employees the fullest freedom in exercising
the rights guaranteed by th[e] Act.” 29 U.S.C. §159(b).
In fact, by requiring employer consent to an otherwise
appropriate bargaining unit desired by employees,
Oakwood has upended the Section 9(b) mandate and al-
lowed employers to shape their ideal bargaining unit,
which is precisely the opposite of what Congress intend-
ed.
Oakwood also potentially limits the contingent em-
ployees’ opportunity for workplace representation. Un-
der Oakwood, the contingent employees cannot organize
in the same unit as the employees solely employed by the
user employer unless the user and supplier employers
consent. Some amici argue that Oakwood does not de-
prive the contingent employees of their Section 7 rights
to organize because a union does not need employer con-
sent if it files a petition that names just the supplier em-
ployer and seeks a unit of just the supplier employees or
if it files a petition that names both the user and supplier
employers and seeks a unit limited to the jointly em-
ployed employees. However, Oakwood would appear to
deny employees and unions the first option in cases
where the supplier employer establishes that the peti-
tioned-for employees are jointly employed by a user em-
ployer. See Oakwood, 343 NLRB at 663, 669. Moreo-
ver, many supplier employers do not just serve one cli-
ent; rather they serve many clients simultaneously, and
accordingly, the supplier employees may be scattered
MILLER & ANDERSON, INC. 9
among various locations. Given their isolation from one
another, those employees may face near-insurmountable
challenges in attempting to organize, and even if they do,
it may prove extremely difficult for them to have their
collective voice heard by their referring employer. As
for the second option, there may be no union that wishes
to name the user and supplier employers on a petition
that seeks to represent a unit limited to the jointly em-
ployed contingent employees.
In any event, limiting the contingent employees to the-
se options, by definition, deprives them of the full ability
to associate for collective bargaining purposes with their
coworkers who are solely employed by the user employ-
er. It also deprives the solely employed employees of
their full ability to associate with their contingent
coworkers. And, as discussed below, it dilutes the bar-
gaining power of both groups. In short, Oakwood’s in-
terjection of a consent requirement in workplaces utiliz-
ing contingent workers creates an obstacle to workers’
freedom to organize and bargain collectively as they see
fit even when the contingent workers share a broad
community of interest with the user’s solely employed
employees they work alongside. 23
Sturgis is also more consistent with the premise upon
which national labor policy is based, because it permits
employees in an otherwise appropriate unit to pool their
economic strength and act through a union freely chosen
by the majority so that they can effectively bargain for
improvements in their wages, hours and working condi-
tions. See NLRB v. Allis-Chalmers Manufacturing Co.,
388 U.S. 175, 180 (1967) (our national labor policy “has
been built on the premise that by pooling their economic
strength and acting through a labor organization freely
chosen by the majority, the employees of an appropriate
unit have the most effective means of bargaining for im-
provements in wages, hours, and working conditions.”).
Accord Barrentine v. Arkansas-Best Freight System, Inc.,
450 U.S. 728, 735 (1981). On the other hand, by requir-
ing the two groups of employees to engage in parallel
organizing drives and then parallel bargaining relation-
ships, despite their shared community of interest and
desire to bargain in a single unit, the Oakwood approach
diminishes the bargaining power of both the employees

23 The American Hospital Association and the Federation of Ameri-
can Hospitals contend that both before and after Oakwood, unions have
sometimes sought to exclude contingent employees from bargaining
units of solely employed user employees. However, that the two
groups of employees may not wish to associate with one another for
collective bargaining purposes in a particular case does not mean that
employers should have veto power to prevent the employees from
organizing together in a combined unit when the employees do desire
to do so. Put simply, Sturgis does not mandate any particular bargain-
ing unit; it simply respects the Sec. 7 rights of employees.
solely employed by the user employer and the employees
jointly employed by that same user employer and a sup-
plier employer.
These deleterious effects of the Oakwood rule requir-
ing employer consent are all the more troubling because
of changes in the American economy over the last sever-
al decades. In BFI, 362 NLRB No. 186, slip op. at 11
(footnotes renumbered), we recently characterized these
changes as follows:
[T]he diversity of workplace arrangements in today’s
economy has significantly expanded. The procurement
of employees through staffing and subcontracting ar-
rangements, or contingent employment, has in-
creased[.]24 The most recent Bureau of Labor Statistics
survey from 2005 indicated that contingent workers ac-
counted for as much as 4.1 percent of all employment,
or 5.7 million workers.25 Employment in the tempo-
rary help services industry, a subset of contingent work,
grew from 1.1 million to 2.3 million workers from
1990 to 2008.26 As of August 2014, the number of
workers employed through temporary agencies had
climbed to a new high of 2.87 million, a 2 percent share
of the nation’s work force.27 Over the same period,
temporary employment also expanded into a much
wider range of occupations.28 A recent report projects
that the number of jobs in the employment services in-
dustry, which includes employment placement agen-
cies and temporary help services, will increase to al-
most 4 million by 2022, making it “one of the largest
and fastest growing [industries] in terms of employ-
ment.”29
The Petitioner notes that while the temporary help ser-
vices industry is historically associated with clerical po-
sitions, by 2008 temporary workers in clerical positions

24 The Board previously recognized the “ongoing changes in the
American work force and workplace and the growth of joint employer
arrangements, including the increased use of companies that specialize
in supplying ‘temporary’ and ‘contract workers’ to augment the work-
forces of traditional employers.” M. B. Sturgis, Inc., 331 NLRB 1298,
1298 (2000).
25 Bureau of Labor Statistics, U.S. Department of Labor, “Contin-
gent and Alternative Employment Arrangements, February 2005,” (July
27, 2005).
26 See Tian Luo, et al., “The Expanding Role of Temporary Help
Services from 1990 to 2008,” Monthly Labor Review, Bureau of Labor
Statistics, August 2010 at 12.
27 Steven Greenhouse, “The Changing Face of Temporary Employ-
ment,” NY Times website, August, N.Y. TIMES, Aug. 31, 2014, at
http://www.nytimes.com/2014/09/01/upshot/the-changing-face-
oftemporary-employment.html
28 See Luo et al., supra at 5.
29 Richard Henderson, “Industry Employment and Output Projec-
tions to 2022,” Monthly Labor Review, Bureau of Labor Statistics,
December 2013.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
represented less than one quarter of employment in this
industry and only 16 percent of the industry’s revenue.
See Luo, et al., supra at 5. Industrial and factory staffing
is the single largest source of revenue for the employ-
ment services industry, which includes both temporary
staffing agencies and more permanent employee leasing
firms, further evidence of the massive changes it has un-
dergone since 1990. Rebecca Smith & Claire McKenna,
Temped Out: How the Domestic Outsourcing of Blue-
Collar Jobs Harms America’s Workers l, 4 (National
Employment Law Project, Sept 2. 2014). The Petitioner
further contends that industrial or “blue collar” workers
account for the largest single occupational group of tem-
porary and contingent workers, with recent estimates
placing them at 37 percent of that workforce. American
Staffing Association, Fact Sheet (last visited Nov. 24,
2015); see also GAO Report to the Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate: Contingent Workforce: Size, Characteris-
tics, Earnings, and Benefits, 9 GAO-15–168R 19 (April
2015). It also claims that over 10 percent of contingent
workers are employed in the construction industry, and
contingent workers are approximately twice as likely as
other workers to be employed in construction and extrac-
tion occupations. Id. at 45, 49–50.
In BFI, we concluded that given our “responsibility to
adapt the Act to the changing patterns of industrial
life,”30 this change in the nature of the workforce was
reason enough to revisit the Board’s then current joint-
employer standard. 362 NLRB No. 186, slip op. at 11.
Just as was the case with respect to that standard,
Oakwood imposes additional requirements that are dis-
connected from the reality of today’s workforce and are
not compelled by the Act. We correspondingly conclude
that to fully protect employee rights, the Board should
return to the standard articulated in Sturgis.31
C. The Policy Arguments Advanced by Sturgis’ Oppo-
nents Are Unpersuasive
Tradesmen, several amici, and our dissenting col-
league also argue that returning to Sturgis would be un-
wise as a policy matter because it would hinder meaning-
ful bargaining, threaten labor peace, and harm employee

30 See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).
31 The American Staffing Association argues that there is no reason
to return to Sturgis because the market for domestic temporary workers
has consistently topped out at 2 percent of the total domestic nonfarm
workforce in recent years. However, as the Board noted in BFI, as of
August 2014, the number of workers employed through temporary
agencies, a subset of contingent work, had grown to 2.87 million work-
ers, a not insignificant number. 362 NLRB No. 186, slip op. at 11.
Moreover, as shown, Oakwood also denies the Section 7 rights, and
dilutes the bargaining power, of the many more solely employed em-
ployees in the workforce.
rights. They argue that this is so because Sturgis permits
a bargaining structure that allegedly gives rise to signifi-
cant conflicts both among the various employers and
among the groups of employees participating in the pro-
cess, thereby making agreement much less likely and
increasing the chances for labor strife.32
However, the specter of conflicts posited by Sturgis’
opponents did not materialize during the many decades
before Sturgis that the Board had “routinely found units
of the employees of a single employer appropriate, re-
gardless of whether some of those employees were joint-
ly employed by other employers.” Sturgis, 331 NLRB at
1302–1307. And Sturgis’ opponents do not demonstrate
that those problems materialized in the years between
Sturgis and Oakwood.
Moreover, the amici and our dissenting colleague fail
to show that collective bargaining involving a Sturgis
unit is significantly more complicated than if the jointly
and solely employed employees were in separate bar-
gaining units, as envisioned by Oakwood. Under
Oakwood, a union does not need a user employer’s con-
sent if it wishes to organize a unit limited to the employ-
ees solely employed by the user employer. Nor does a
union need the consent of the user employer and supplier
employer if it wishes to organize a unit limited to the
employees who are jointly employed by user and suppli-
er employers. Accordingly, if a union were to success-
fully organize both units, then the user employer would
have an obligation to bargain in good faith with both
units of employees. Thus, in the unit composed of em-
ployees solely employed by the user employer, the user
employer would have an obligation to bargain over all
those employees’ terms, and the supplier employer
would have no bargaining obligation whatsoever vis-a-
vis the solely employed employees (because it does not
employ any of them). In the unit of the jointly employed
contingent employees, the user employer, like the suppli-
er employer, would have an obligation to bargain only as

32 For example, the Council on Labor Law Equality states in a pas-
sage typical of those favoring adhering to Oakwood:
If the user employer and supplier employer are forced into such a bar-
gaining relationship without their consent, there will likely be disputes
on the employers’ side of the table (over who has the responsibility to
bargain, and ultimately pay for, certain terms and conditions of em-
ployment) as well as with the union. And there will likely be divisions
on the union’s side of the table if the terms and conditions of employ-
ment for the user employer’s employees are different (i.e., more or
less favorable to the employees) than for the jointly employed em-
ployees. And there will be no agreement unless the parties can reach
agreement on all terms and conditions of employment for both groups
of employees (the user employer’s employees and the jointly em-
ployed employees). The Board should not mandate bargaining rela-
tionships that are so fraught with the potential for failure.
MILLER & ANDERSON, INC. 11
to the terms and conditions it has the authority to control.
See NLRB v. Western Temporary Services, Inc., supra,
821 F.2d at 1265; BFI, supra, 362 NLRB No. 186, slip
op. at 16.
The user and supplier employers would face the pre-
cisely the same obligations in a Sturgis unit. Our
caselaw makes clear that each employer is obligated to
bargain only over the employees with whom it has an
employment relationship and only with respect to such
terms and conditions that it possesses the authority to
control.33 Thus, in a Sturgis unit, the user employer has
an obligation to bargain over all the terms of the employ-
ees it solely employs, and only has an obligation to bar-
gain over its jointly employed employees’ terms and
conditions which it possesses the authority to control.
Similarly, in a Sturgis unit, the supplier employer has no
obligation to bargain regarding any of the terms of the
employees who are solely employed by the user employ-
er. Allowing jointly employed employees to be included
in a bargaining unit with their solely employed cowork-
ers imposes no additional burden on the supplier em-
ployer because its bargaining obligation extends only to
the employees it jointly employs and only with respect to
such terms and conditions which it possesses the authori-
ty to control. And the user employer has exactly the
same size pocketbook regardless of whether it bargains
in a Sturgis unit or whether it bargains in two parallel
units (i.e., one limited to the employees solely employed
by it and the other limited to the employees it jointly
employs with the supplier employer). The supplier em-
ployer likewise has the same size pocketbook under both
the Oakwood and Sturgis regimes.
Accordingly, the claim that Sturgis gives rise to an
unworkable bargaining structure—because there may be
disputes on the employer side of the table over who has
the responsibility to bargain over or pay for certain
items—is unconvincing, because the potential for such
disputes could be said to exist in every case involving
joint employer bargaining, which has long been sanc-
tioned by the Board and the courts. After all, in every
joint employer bargaining case, more than one employer
must sit at a bargaining table and bargain with the union
that represents the unit employees.

33 Sturgis phrased the obligation as follows: “[E]ach employer is ob-
ligated to bargain only over the employees with whom it has an em-
ployment relationship and only to the extent it controls or affects their
terms and conditions of employment.” Sturgis, 331 NLRB at 1306
(emphasis added). In light of the Board’s recent decision in BFI, we
find it appropriate to slightly rephrase the obligation as follows: Each
employer is obligated to bargain only over the employees with whom it
has an employment relationship and “only with respect to such terms
and conditions which it possesses the authority to control.” BFI, 362
NLRB No. 186, slip op. at 2, 16 (emphasis added).
Not surprisingly, the appellate courts have also reject-
ed claims that inclusion of jointly employed employees
in a unit of solely employed employees over the objec-
tions of one or more of the joint employers is inimical to
effective collective bargaining. For example, as noted,
in S.S. Kresge Co. v. NLRB, the Sixth Circuit rejected the
claim that “to compel unwilling employers to bargain as
joint-employers will disrupt the collective bargaining
process” because each of the joint employers may have
independent ideas about appropriate labor policy. 416
F.2d at 1231–1232. The court explained (id. at 1231):
“Whether [this] asserted practical difficult[y] will occur
is speculative.” The court also agreed with the Ninth
Circuit that just as the different entities have managed to
resolve any differences between them in agreeing to do
business with one another, so too should they be able to
resolve any differences between them when it comes to
bargaining. See id. quoting Gallenkamp Stores Co. v.
NLRB, supra, 402 F.2d at 531 (“‘K-Mart and the licen-
sees have worked out their diverse business problems to
meet the needs of their joint enterprise, as is shown in
their uniform license agreements. Like efforts should be
as effective in their bargaining with the Union.’”).34
As for employee interests, to the extent that the user
and supplier employers are unable or unwilling to give
both the solely employed and the jointly employed em-
ployees everything they want, tradeoffs may have to be
made. But the same would be true regardless of whether
the bargaining takes place in two parallel units or one
Sturgis combined unit. And, as Sturgis noted, “Even in
units composed only of solely employed employees, it is
common for groups of employees to have differing, even
competing, interests. Unions and employers are routine-
ly called upon to handle such differences, and do so suc-
cessfully.” Sturgis, 331 NLRB at 1307. In S.S. Kresge
Co. v. NLRB, the Sixth Circuit rejected a similar claim
that the rights of the licensees’ employees would be im-
paired if they were included in the same unit as the em-
ployees solely employed by Kresge because the solely
employed employees would outnumber the others and

34 Contrary to our dissenting colleague’s claim, it is of no legal con-
sequence that the supplier employer is not a joint employer of some of
the employees in a Sturgis unit. To repeat, in a Sturgis unit, all the
employees perform work for the user employer, and all are employed
(either solely or jointly) by the user employer. And if a union prevails
in an election involving a Sturgis unit, the Board does not require the
supplier employer to engage in bargaining as to the entire bargaining
unit; it must bargain only as to those unit members whom it employs.
The same is true if the user employer contracts with multiple supplier
employers. There too, all the employees perform work for the user
employer; all the employees are employed (either solely or jointly) by
the user employer; and no supplier employer is required to bargain as to
the entire unit, but only as to its own employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
therefore dominate union policy. 416 F.2d at 1231. The
court explained (id. at 1232):
There is the possibility that the employees in the de-
partments operated by Kresge will dominate union pol-
icy. This, however, is a problem which is germane to
all units encompassing different departments with di-
vergent interests. Indeed, the same problem could arise
if the appropriate unit consisted solely of Kresge em-
ployees, because employees in larger Kresge depart-
ments could impose their decisions on employees in
smaller departments. Such a result does not mean that
the unit is inappropriate, particularly when, as in the
present case, there is a sufficient community of interest
among the employees in the unit to suggest the prob-
lem will not be serious if it does occur.
Contrary to amici, Sturgis does not encourage a tyran-
ny of the majority over minority interests. Under Sturgis
(331 NLRB at 1305–1306, 1308), the Board will not find
a combined unit appropriate for the purposes of collec-
tive bargaining unless the two groups share a community
of interest; moreover, by virtue of the union’s status as
exclusive representative of the unit, the union has a duty
to fairly and in good faith represent the interests of all
the unit employees, including in collective bargaining.
See generally Emporium Capwell Co. v. NLRB, 420 U.S.
50, 64 (1975); Vaca v. Sipes, 386 U.S. 171, 177 (1967).
Nor are we persuaded by the other policy arguments
opposing a return to Sturgis. For example, some amici
argue that the Board would harm contingent workers and
the economy as a whole if it were to return to Sturgis.
They reason that if the Board were to overturn Oakwood
and return to Sturgis, it would discourage employers
from entering into, or maintaining, alternative staffing
arrangements because user employers will wish to avoid
the costs, uncertainty and inherent difficulties presented
by the prospect of bargaining in Sturgis units. But this
employer wish runs counter to the Act’s stated policy of
encouraging the practice of collective bargaining. In any
event, Sturgis leaves employers free to enter into, or
maintain, such arrangements. In other words, we have
decided to return to Sturgis, not to prevent employers
from entering into, or maintaining user-supplier ar-
rangements, but rather to better effectuate the policies of
the Act if the employees affected by such arrangements
choose to exercise their Section 7 rights.
The Chamber of Commerce of the United States of
America cautions that overturning Oakwood and return-
ing to Sturgis would be bad for unions seeking to organ-
ize just the employees solely employed by the user em-
ployer, because “employers may use Sturgis as a weapon
to dilute a union’s support” and to preclude employees
solely employed by a user employer “from being repre-
sented at all.” The Chamber adds, “If the temporary
[supplier] employees outnumber the employees solely
employed by the user, this possibility may well become
likely.” In our view, rather than undermining the case
for returning to Sturgis, the suggestion that employers
might choose which positions to take regarding the inclu-
sion of the supplier employees based solely on tactical
considerations relating to the election, contradicts their
claims that combined units hinder collective bargaining,
foster labor strife, and undermine employee rights.35
Nor, contrary to the claims of some amici and our dis-
senting colleague, can it fairly be said that returning to
Sturgis would undermine Section 8(b)’s prohibitions.
For example, nothing in Sturgis permits a union in any
way to restrain or coerce an employer in the selection of
his collective bargaining representative or grievance ad-
justor. Nothing in Sturgis permits a union to strike or to
threaten, coerce, or restrain an employer to join an em-
ployer organization. Nothing in Sturgis forces an em-
ployer to bargain with a labor organization before it has
been certified. And nothing in Sturgis eliminates the
prohibition on secondary boycott activity. See Sturgis,
331 NLRB at 1307 (rejecting dissent’s secondary boycott
concerns).36
D. Response to the Dissent
Our dissenting colleague offers both policy arguments
and statutory arguments against a return to Sturgis, but,
for reasons already suggested, we are not persuaded.
We have explained that our interpretation of the Act is
consistent with its text and supportive of its policies.
Our dissenting colleague does not argue, nor could he,
that Congress has spoken directly to the issue in this
case. Instead, the dissent repeatedly—but mistakenly—
characterizes the bargaining that takes place in a Sturgis
unit as “multi-employer/non-employer bargaining.” As
discussed above, it is not “multi-employer” bargaining
because all the employees in a Sturgis unit perform work
for the user employer and all the employees are em-

35 In any event, as we recently reiterated, the fact that an employer’s
proposed alternative unit may be appropriate does not necessarily ren-
der the employees’ proposed unit inappropriate. See Specialty
Healthcare, 357 NLRB 934, 941–943.
36 As for the National Right to Work Legal Defense Foundation,
Inc.’s claim that employees’ rights to decertify or deauthorize third-
party representation would, in most cases, be difficult, if not impossi-
ble, given the disparate interests and the numerosity of a user employ-
er’s own employees, the same problem could be said to exist whenever
a small group of employees is included in the same unit as a larger
group of employees. And Sturgis requires that the two groups share a
community of interest. See Sturgis, 331 NLRB at 1305–1306, 1308.
Moreover, as the Chamber’s argument implicitly concedes, it is by no
means clear that the contingent workers will always be outnumbered by
the employees who are solely employed by the user employer.
MILLER & ANDERSON, INC. 13
ployed (either solely or jointly) by the user employer.
By contrast, there is no common user employer for all
the employees in a multi-employer bargaining unit.
The dissent’s contention that under Sturgis, an em-
ployer is required to bargain with respect to non-
employees—in contravention of Section 8(a)(5)—is
likewise mistaken. As explained above, in a Sturgis unit,
each employer is obligated to bargain only over the em-
ployees with whom it has an employment relationship
(and only with respect to such terms and conditions
which it possesses the authority to control). Sturgis, 331
NLRB at 1306. Accordingly, no employer bargains re-
garding employees it does not employ, and so our col-
league’s use of the term “non-employer” bargaining is
inaccurate. To the extent that multiple employers will be
required, as a practical matter, to cooperate or coordinate
in bargaining, that is a function of the freely chosen
business relationship between user and supplier employ-
ers that defines all joint-employer situations.37
Contrary to our dissenting colleague’s suggestion, we
are not, by returning to Sturgis, abdicating our responsi-
bility to carefully review and make an appropriate bar-
gaining unit determination in each case. As the Sturgis
Board explained, “By our decision today, we do not sug-
gest that every unit sought by a petitioner, which com-
bines jointly employed and solely employed employees
of a single user employer, will necessarily be found ap-
propriate. As in the Board’s pre-Greenhoot cases, appli-
cation of our community of interest test may not always
result in jointly employed employees being included in
units with solely employed employees.” Sturgis, 331
NLRB at 1305–1306 (and cases cited therein). The
Board continued to carefully examine the community of
interest factors in determining the appropriateness of
petitioned-for units while Sturgis was in effect. For ex-
ample, as the Chamber of Commerce notes, in the Stur-
gis-governed case of Outokumpu Copper Franklin, Inc.,
the Board rejected the unit sought by the petitioning un-
ion on community-of-interest grounds. 334 NLRB 263,
263–264 (2001). And, as our order in this case makes
clear, no election can be conducted in the combined unit
sought by the petitioner here unless, among other things,
it is established that the employees supplied by Trades-
men to Miller & Anderson (who are allegedly jointly
employed by both entities) share a community of interest

37 Our dissenting colleague misunderstands the reference in Sec.
9(b) to “assur[ing] employees the fullest freedom in exercising the
rights guaranteed by th[e] Act.” The reference is plainly to the statuto-
ry rights granted to employees. No provision in the Act guarantees
employers that they will be required to bargain only with respect to a
unit to which they have consented.
with the employees solely employed by Miller & Ander-
son.
Our dissenting colleague is mistaken in asserting that
the return to Sturgis, coupled with BFI’s restatement of
the joint-employer standard, somehow creates an unprec-
edented situation. In BFI, the Board returned to its tradi-
tional test, endorsed by the Third Circuit. BFI, 362
NLRB No 186, slip op. at 15, 20. BFI merely represents
a return to the Board’s “earlier reliance on reserved con-
trol and indirect control as indicia of joint-employer sta-
tus.” See BFI, 362 NLRB No. 186, slip op. at 8–10, 13–
16, 18–20. Indeed, Sturgis itself cited several cases that
relied on such factors. 331 NLRB at 1302–1303.38 Be-
fore the Board’s restrictive joint-employer decisions of
1984 (overruled in BFI) and before 1990’s Lee Hospital
decision, the Board followed the same approach we en-
dorse today: a broad definition of joint employment and
a practice of including jointly-employed and solely-
employed employees of a single user employer in the
same bargaining unit, where they shared a community of
interest. There is no evidence of destabilized collective
bargaining during that long period. In any event, for the
reasons explained here and in BFI, both rules are based
on permissible constructions of the Act and effectuate the
Act’s policies.39
IV. CONCLUSION
We hold today that Sturgis is more consistent with our
statutory charge than Oakwood. Accordingly, we over-
rule Oakwood and return to the holding of Sturgis. Em-

38 See, for example, S.S. Kresge Co. v. NLRB, supra, 416 F.2d at
1229–1231 (Board did not act arbitrarily in concluding that Kresge and
its licensees are joint employers and that a storewide unit is appropriate
based on its finding that Kresge retained the right to control substantial-
ly the labor relations of the various licensees); Thriftown, Inc., supra,
161 NLRB at 607 (whether or not exercised, Thriftown’s power to
control is present by virtue of its operating agreement with licensee
Astra); Jewel Tea Co., Inc., supra, 162 NLRB at 510 (finding relevant
that the license agreements expressly give Jewel Tea the power to con-
trol effectively essential terms and conditions of employment of the
employees of certain licensees even if licensor has not actually exer-
cised such power); Taylor’s Oak Ridge Corp., supra, 74 NLRB at 932
(“That the Employer’s power of control [over the individuals working
in the departments leased to concessionaires] may not in fact have been
exercised is immaterial, since the right to control, rather than the actual
exercise of that right, is the touchstone of the employer-employee rela-
tionship.”).
39 The Board will address jurisdictional issues the same way it did
before, and, unlike the dissent, we do not anticipate any jurisdictional
problems. For example, prior to Sturgis, the Board had held that the
fact that some terms of employment are controlled by a government
entity that is outside of the Board’s jurisdiction does not mean that
meaningful bargaining is not possible with the government contractor
that is subject to the Act regarding the significant terms of employment
that the latter employer controls. See Management Training Corp., 317
NLRB 1355 (1995). See also BFI, 362 NLRB No. 186, slip op. at 13
fn.70, 20–21 fn. 121 (discussing Management Training).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ployer consent is not necessary for units that combine
jointly employed and solely employed employees of a
single user employer. Instead, we will apply the tradi-
tional community of interest factors to decide if such
units are appropriate. Sturgis, 331 NLRB at 1308. We
likewise agree with the Sturgis Board’s sanctioning of
units of the employees employed by a supplier employer,
provided the units are otherwise appropriate. Ibid.
ORDER
The Regional Director’s administrative dismissal of
the petition is reversed, and the petition is reinstated.
The petition is remanded to the Regional Director for
further action consistent with this Decision.40
Dated, Washington, D.C. July 11, 2016
______________________________________
Mark Gaston Pearce, Chairman

40 After the Board issued its NIFB on July 6, 2015, Tradesmen Inter-
national moved to dismiss as moot the petition and the request for
review on July 20, 2015. Tradesmen’s motion claimed that the work
described in the petition had ended and that neither Tradesman nor
Miller & Anderson expected to perform sheet metal work in Franklin
County, Pennsylvania in the foreseeable future. Petitioner opposed the
motion, claiming, among other things, that if the Board reverses the
Regional Director’s decision to dismiss the petition for lack of employ-
er consent, it would test Tradesman’s factual claims at hearing. We find
that Tradesmen’s motion to dismiss raises material factual issues war-
ranting a hearing. Accordingly, we remand the case to the Regional
Director to determine whether Miller & Anderson, Inc. and Tradesmen
have ceased performing sheet metal work in Franklin County, Pennsyl-
vania with no plans to resume such work. If that is not the case, the
Regional Director must determine the appropriate unit under the hold-
ing of Sturgis, which we return to today. See BFI, 362 NLRB No. 186,
slip op. at 2 (noting that the Board’s “established presumption in repre-
sentation cases like this one is to apply a new rule retroactively.”). In
other words, in the event that Miller & Anderson, Inc. and Tradesmen
have not permanently ceased performing sheet metal work in Franklin
County, Pennsylvania, the Regional Director must determine whether
Miller & Anderson and Tradesmen are joint employers of the employ-
ees supplied by Tradesmen to Miller & Anderson, and, if so, whether
those employees share a community of interest with the employees
solely employed by Miller & Anderson on its jobsites in Franklin
County, Pennsylvania.
Our dissenting colleague complains that rather than deciding the ap-
plicability of Oakwood, the Board should have simply remanded this
case for a hearing to resolve the factual dispute regarding the continued
existence of the petitioned-for unit. However, we deem it more appro-
priate to address the thoughtful arguments raised by the parties and
amici. Then, if the Regional Director determines on remand that the
unit continues to exist, the Director can also promptly decide, based on
record evidence, whether the petitioned-for unit is appropriate, rather
than make the employees and parties wait still longer while the Director
transfers the case back to the Board for resolution of the Oakwood
issue, as our colleague recommends.
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In Browning-Ferris Industries of California, Inc. d/b/a
BFI Newby Island Recyclery, 362 NLRB No. 186 (2015)
(Browning-Ferris), the Board majority substantially ex-
panded the circumstances when multiple entities would
be deemed a joint employer of particular employees.1
Under Browning-Ferris, if two businesses have sufficient
control over employment terms and conditions within an
appropriate bargaining unit, then (i) both entities are
jointly deemed the “employer,” and (ii) if the union pre-
vailed in an election, both business entities would be
required to jointly engage in collective bargaining, with
each entity negotiating “such terms and conditions which
it possesses the authority to control.”2 Former Member
Johnson and I dissented in Browning-Ferris, based on
our view that the expanded joint-employer standard was
contrary to our statute and because it left employees,
unions and employers “in a position where there can be
no certainty or predictability regarding the identity of the
‘employer.’”3 We were especially critical of the multi-
ple-entity bargaining obligation described in Browning-
Ferris, where each entity would be responsible for bar-
gaining over some subjects and not others.4 In our view,
this type of bargaining would “foster substantial bargain-
ing instability by requiring the nonconsensual presence
of too many entities with diverse and conflicting interests
on the ‘employer’ side,” and “even the commencement

1 See, e.g., Browning-Ferris, supra, slip op. at 2, where the Board
majority stated: “We will no longer require that a joint employer not
only possess the authority to control employees’ terms and conditions
of employment, but also exercise that authority. Reserved authority to
control terms and conditions of employment, even if not exercised, is
clearly relevant to the joint-employment inquiry. . . . Nor will we re-
quire that, to be relevant to the joint-employer inquiry, a statutory em-
ployer’s control must be exercised directly and immediately. If other-
wise sufficient, control exercised indirectly—such as through an inter-
mediary—may establish joint-employer status” (citations and footnotes
omitted).
2 Id., slip op. at 16.
3 Id., slip op. at 22–23 (Members Miscimarra and Johnson, dissent-
ing).
4 Id., slip op. at 22–24, 37–43, 48 (Members Miscimarra and John-
son, dissenting).
MILLER & ANDERSON, INC. 15
of good-faith bargaining may be delayed by disputes
over whether the correct ‘employer’ parties are present.”5
In today’s decision, my colleagues substantially en-
large the expanded joint-employer platform created by
Browning-Ferris and require a more attenuated type of
multi-employer/non-employer bargaining6 in a single
unit when the multiple business entities do not even
jointly employ all unit employees. Specifically, my col-
leagues hold that the Board may require two or more
businesses to engage in multi-employer bargaining with-
out their consent, even though one of the entities has no
employment relationship with some of the unit employ-
ees, provided that other employees in the same unit are
jointly employed by the employer entities. The latter
determination (whether some individuals are jointly em-
ployed) will be governed by the expanded Browning-
Ferris joint-employer standard.
My colleagues overrule Oakwood Care Center, 343
NLRB 659 (2004) (Oakwood), and adopt standards gov-
erning multi-employer bargaining that have never previ-
ously existed, except for a 4-year period after the Board
decided M. B. Sturgis, Inc., 331 NLRB 1298 (2000).
However, I do not agree that my colleagues today “return
to the holding of Sturgis.” It is true that Sturgis permit-
ted the certification of multi-employer bargaining units,
without consent, where some unit employees were jointly
employed, and where other unit employees were em-
ployed only by one employer entity. However, through-
out the 4-year period governed by Sturgis (and for many
years before and after Sturgis was decided), the joint-
employer landscape was circumscribed by well-known
limiting principles that were repudiated, with considera-
ble fanfare, in Browning-Ferris.7 Thus, my colleagues

5 Id., slip op. at 23 (Members Miscimarra and Johnson, dissenting).
6 The phrase “multi-employer bargaining” is misleading in the in-
stant case because the type of bargaining contemplated by my col-
leagues involves two or more management entities, but only one has an
employment relationship with all employees in the bargaining unit, and
the other management entity or entities has or have no employment
relationship whatsoever with some of the unit employees (i.e., with the
employees who are solely employed by the first entity). To avoid con-
fusion, I refer to this as “multi-employer/non-employer bargaining,”
which reflects the fact that one management entity employs everyone in
the bargaining unit (either jointly or solely), and the other management
entity lacks any employment relationship with some employees in the
unit.
This type of bargaining differs from “joint-employer” status, which
exists when two or more entities are found to have sufficient control
over employment terms and conditions to warrant a finding that they
jointly have an “employer” relationship with all employees in the bar-
gaining unit—although, in Browning-Ferris, the Board majority indi-
cated that each joint-employer entity would only be responsible for
bargaining “with respect to such terms and conditions which it possess-
es the authority to control,” id., slip op. at 16.
7 Browning-Ferris overruled two longstanding joint-employer deci-
sions—Laerco Transportation, 269 NLRB 324 (1984), and TLI, Inc.,
do not “return” to a legal regime that has ever existed.
The Board and the courts have never previously applied
the expansive joint-employer standards articulated in
Browning-Ferris combined with the multi-employer/non-
employer bargaining that will result from today’s deci-
sion.8
For several reasons, I respectfully dissent from the ma-
jority’s approval of multi-employer/non-employer bar-
gaining in the circumstances presented here.
First, as noted above, the Board majority in Browning-
Ferris already created a new type of multi-employer bar-
gaining, in joint-employer situations, that will predicta-
bly result in confusion and instability, which is com-
pounded by the multi-employer/non-employer bargaining
approved by the Board majority here. Given that Brown-
ing-Ferris has already created an “analytical grab bag
from which any scrap of evidence regarding indirect con-
trol or incidental collaboration” may result in joint-
employer status,9 the majority’s expansion of Browning-
Ferris here will only make it more difficult for parties to
anticipate whether, when or where this new type of mul-
ti-employer/non-employer bargaining will be required by
the Board, nor can anyone reasonably predict what it will
mean in practice.

271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985)—
which the Board majority described as follows:
Laerco and TLI, both decided in 1984, marked the beginning of a 30-
year period during which the Board . . . effectively narrowed the joint-
employer standard. Most significantly, the Board’s decisions have im-
plicitly repudiated its earlier reliance on reserved control and indirect
control as indicia of joint-employer status. The Board has foreclosed
consideration of a putative employer’s right to control workers, and
has instead focused exclusively on its actual exercise of that control—
and required its exercise to be direct, immediate, and not “limited and
routine.”
362 NLRB No. 186, slip op. at 10 (emphasis added). In addition to overrul-
ing Laerco and TLI, the Board in Browning-Ferris abandoned all three of
the limiting principles described above. Id., slip op at 15–16 (“[W]e will no
longer require that a joint employer . . . exercise [its] authority . . . directly,
immediately, and not in a ‘limited and routine’ manner.”).
8 My colleagues dispute this assertion and persist in characterizing
Browning-Ferris as a return to the pre-1984 standard, before Laerco
and TLI. However, as former Member Johnson and I explained in our
Browning-Ferris dissent, the Board majority’s decision there “ex-
pand[ed] joint-employer status far beyond anything that . . . existed . . .
under precedent predating TLI and Laerco.” 362 NLRB No. 186, slip
op. at 25. Further, as explained below in footnote 29, the few cases
cited by the majority today—to support their contention that the Board,
early in its history, approved of units combining employees solely
employed by a store with employees jointly employed by the store and
its licensees—did not address the issue raised here: whether Sec. 9(b)
precludes nonconsensual multi-employer bargaining units where one of
the “employer” entities lacks any employment relationship with some
or many employees in the unit.
9 Id., slip op. at 26 (Members Miscimarra and Johnson, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Second, I believe the Act’s requirements and sound
policy considerations prevent the Board from certifying
multi-employer bargaining units without the consent of
the parties.
Third, I also disagree with my colleagues’ use of this
case as the vehicle for overruling existing precedent. In a
timely “Motion to Dismiss Petition and Request for Re-
view as Moot” that was filed more than 11 months ago,10
the Board was placed on notice that the petitioned-for
unit in the instant case no longer exists and has not exist-
ed for several years. The Motion to Dismiss, supported
by an affidavit, indicated that (i) nobody has been em-
ployed in the multi-employer unit for more than 3 years,
(ii) there is no expectation that anyone will ever be em-
ployed in the unit, and (iii) the petitioned-for unit is de-
funct. Instead of ruling on the pending Motion to Dis-
miss on the basis that it pleads facts that would render
this proceeding moot, my colleagues moved forward
with the disposition of this case on the merits. The avail-
able evidence indicates no employees of the Employers
will be affected by the Board’s decision in this case,
which means the Board is essentially issuing an advisory
opinion that overrules existing precedent. I believe the
Board should have fairly considered and resolved the
Motion to Dismiss, especially considering it was filed so
long ago, before expending the considerable resources
required to decide the merits.
For these reasons, which are explained more fully be-
low, I respectfully dissent.
DISCUSSION
The representation petition in this case, filed by the
Sheet Metal Workers International Association, Local
Union No. 19, AFL–CIO (Union), seeks to represent a
bargaining unit consisting of two groups of employees:
(i) sheet metal workers solely employed by Miller &
Anderson at a construction project in Franklin County,
Pennsylvania, and (ii) sheet metal workers directly em-
ployed by Tradesmen International (Tradesmen) who
were assigned to perform services for Miller & Anderson
at the Franklin County project. (Using the standard ter-
minology, Tradesmen was the “supplier employer,” and
Miller & Anderson was the “user employer.”) It is un-

10 See Tradesmen International’s Motion to Dismiss Petition and
Request for Review as Moot (filed July 20, 2015) (Motion to Dismiss).
Attached to Tradesmen’s Motion to Dismiss is the sworn affidavit of
Scott Hilligoss, Tradesmen International’s Mid-Atlantic Manager, who
swears under penalty of perjury that the project that was the subject of
the election petition was completed on or before July 6, 2012, that
employees of Tradesmen International have not performed any work
for Miller & Anderson for more than 3 years, that Tradesmen Interna-
tional itself has not employed any employees within the unit’s geo-
graphic boundaries in the last 3 years, and that Tradesmen International
has no expectation of performing unit work in the foreseeable future.
disputed that Tradesmen and Miller & Anderson jointly
employed the employees supplied by Tradesmen to Mil-
ler & Anderson. However, Tradesmen had no employ-
ment relationship with the sheet metal workers solely
employed by Miller & Anderson. Nonetheless, the Un-
ion’s petition sought a combined unit as to which the
“employer” entities would include both Tradesmen and
Miller & Anderson. Tradesmen and Miller & Anderson
did not consent to the multi-employer/non-employer bar-
gaining unit sought by the Union.
On April 26, 2012, the Regional Director dismissed
the election petition, correctly finding that the petitioned-
for unit was inappropriate under Oakwood. On May 18,
2015, the Board granted the Petitioner’s request for re-
view of the Regional Director’s decision.11 On July 20,
2015, as noted previously, one of the employer entities,
Tradesmen, filed a “Motion to Dismiss Petition and Re-
quest for Review as Moot,” with a supporting affidavit,
indicating that nobody has been employed in the unit for
more than 3 years, there is no expectation that anyone
will ever be employed in the unit, and the petitioned-for
unit is defunct. My colleagues, overruling Oakwood,
hold that it is appropriate to conduct an election in a mul-
ti-employer/non-employer bargaining unit where the
employer entities are a joint employer of some employ-
ees, and where no employment relationship of any kind
exists between one or more employer participants and
other employees. And if the union prevails in an elec-
tion,12 the Board will impose a statutory obligation on all
of the employer entities, without the parties’ consent, to
engage in multi-employer bargaining. Contrary to my
colleagues, I believe the Regional Director properly dis-
missed the petition, and by overruling Oakwood, the
Board majority improperly expands the Browning-Ferris
joint-employer standard by requiring multi-
employer/non-employer bargaining that will be even
more unworkable in a unit where one of the joint em-
ployers does not even have an “employer” relationship
with everyone in the bargaining unit.

11 On July 6, 2015, the Board issued a Notice and Invitation to File
Briefs.
12 As noted previously, it is highly likely that no election will be
conducted in this case because the Motion to Dismiss filed by Trades-
men, with a supporting affidavit, indicates that the bargaining unit no
longer exists, no employees have been employed in the unit for more
than 3 years, and there is no reasonable expectation that any employees
will ever be employed in the petitioned-for unit.
MILLER & ANDERSON, INC. 17
A. Multi-Employer/Non-Employer Bargaining Units, in
Tandem with the Expanded Browning-Ferris Joint-
Employer Standard, Will Produce Bargaining That Is
Even More Unworkable, Contrary to the Board’s
Primary Duty to Foster Stable
Labor Relations
One of the Board’s primary roles is to foster stability
in bargaining relationships when employees choose to be
represented by a union. Colgate-Palmolive-Peet Co. v.
NLRB, 338 U.S. 355, 362–363 (1949) (“To achieve sta-
bility of labor relations was the primary objective of
Congress in enacting the National Labor Relations
Act.”); NLRB v. Appleton Electric Co., 296 F.2d 202,
206 (7th Cir. 1961) (“A basic policy of the Act [is] to
achieve stability of labor relations.”); Northwestern Uni-
versity, 362 NLRB No. 167, slip op. at 1 (2015) (declin-
ing to assert jurisdiction where the union sought to repre-
sent grant-in-aid scholarship football players because
doing so “would not serve to promote stability in labor
relations”). As I stated in CNN America, Inc., “[n]othing
is more fundamental when interpreting and applying the
Act than correctly identifying the parties,” which
includes “establishing what parties and representatives
may appropriately engage in bargaining.” 361 NLRB
No. 47, slip op. at 38 (2014) (Member Miscimarra,
dissenting in part).
In Browning-Ferris, supra, Member Johnson and I dis-
sented in large part because the Board majority’s ex-
panded joint-employer standards would require an un-
precedented array of diverse business entities, with con-
flicting interests, to participate in collective bargaining.
As we explained:
Collective bargaining was intended by Congress to be a
process that could conceivably produce agreements.
One of the key analytical problems in widening the net
of “who must bargain” is that, at some point, agree-
ments predictably will not be achievable because dif-
ferent parties involuntarily thrown together as the
“bargainers” under the majority’s new test will pre-
dictably have widely divergent interests. Today’s
marked expansion of bargaining obligations to other
business entities threatens to destabilize existing bar-
gaining relationships and complicate new ones.13
Although the Board majority in Browning-Ferris stat-
ed that each joint-employer participant would only be
responsible for bargaining over “such terms and condi-
tions which it possesses the authority to control,”14 for-

13 Browning-Ferris, supra, slip op. at 38 (Members Miscimarra and
Johnson, dissenting) (emphasis added).
14 Browning-Ferris, supra, slip op. at 16.
mer Member Johnson and I pointed out that our statute
provides virtually no guidance (nor did the Browning-
Ferris majority) regarding how such bargaining is sup-
posed to work:
[H]ow exactly are joint user and supplier employers to
divvy up the bargaining responsibilities for a single
term of employment that they will be deemed under the
new standard to codetermine, one by direct control and
the other by indirect control? How does one know who
has authority at all over a term and condition of em-
ployment, under the majority’s vague formulation?
What if two putative employer entities get into a dis-
pute over whether one has authority over a certain term
or condition of employment? What if the putative em-
ployers are competitors? . . . What if there are too many
entities to come to an agreement? How does bargaining
work in this circumstance? . . . So questions exist as to
(i) which entities are the “employer,” (ii) which entities
must (or must not) engage in bargaining over particular
employment terms, and even (iii) what party—the re-
spondent(s) versus the General Counsel—bears the
burden of proof regarding this assortment of issues.15
The above questions (and more) arise where, under
Browning-Ferris, the multiple business entities at least
nominally have an employer relationship with all em-
ployees in the bargaining unit—specifically, a joint-
employer relationship based on the substantially enlarged
Browning-Ferris standard. As a result of today’s deci-
sion, our statute is being stretched further to combine
(i) all the challenges associated with joint-employer bar-
gaining under the expansive Browning-Ferris standard,
plus (ii) additional issues caused by mandating bargain-
ing where one or more business entities do not have any
employment relationship with some employees in the
bargaining unit. Indeed, if the unit consists mostly of
employees who are solely employed by one joint em-
ployer (the user employer), the majority of unit employ-
ees will have no employment relationship with the other
employer (the supplier employer).
To be clear, whenever the Board recognizes this type
of multi-employer/non-employer bargaining unit, the
“non-employer” businesses—like Tradesmen here,
which never employed any of the unit members solely
employed by Miller & Anderson—will be required to
engage in bargaining, even though, as to some or even
most individuals in the unit, the businesses fail the ex-
tremely lenient Browning-Ferris joint-employer test. In
other words, as to these individuals solely employed by

15 Browning-Ferris, supra, slip op. at 42 (Members Miscimarra and
Johnson, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
the user employer, the non-employer business is a Board-
mandated participant in negotiations even though it does
not even have potential (i.e., “reserved”) authority to
“indirectly” affect employment terms and conditions.
Browning-Ferris, supra, slip op. at 15–16 (quoted in fn.
7, supra).16 I recognize my colleagues are motivated by a
good-faith desire to further the Act’s purpose of encour-
aging collective bargaining, but I believe the Board can-
not reasonably find that a bargaining unit structured in
this manner is “appropriate” for the “purposes of collec-
tive bargaining.” NLRA Sec. 9(a).

16 Contrary to my colleagues’ suggestion, I recognize that the Board
majority imposes no duty to bargain on the non-employer entity (e.g.,
the supplier employer) regarding employment terms that relate exclu-
sively to bargaining unit members that entity does not employ (i.e.,
employees who are solely employed by the user employer). However,
this scenario—in which one employer seated at the bargaining table
purportedly plays no role in negotiating employment terms of bargain-
ing unit members employed by another employer seated at the same
table—highlights the fact that the Board-mandated employer-side par-
ticipants do not comprise a single “employer,” and the resulting negoti-
ations, in the absence of consent, will involve inherent confusion and
instability. This becomes even more apparent when the negotiations
involve multiple non-employer entities (i.e., multiple supplier employ-
ers), each of which has no employment relationship either with
(i) bargaining unit members who are solely employed by the user em-
ployer, or (ii) bargaining unit members who are jointly employed by the
user employer and each of the other supplier employers. See Gourmet
Award Foods, Northeast, 336 NLRB 872 (2001) (finding appropriate a
unit comprising a user employer’s solely employed employees plus
jointly employed employees supplied by three supplier employers);
infra fn. 18. In my view, it defies logic and reason to suggest that this
type of highly fragmented bargaining involves a single “employer” unit
in conformity with Sec. 9(b). Moreover, even if one could accept this
characterization, I believe my colleagues do not adequately consider the
practical difficulties and substantial challenges this type of bargaining
will present for employees, employers and unions alike, given the
Board-mandated participation by diverse nonconsenting parties on the
“employer” side.
The multi-employer/non-employer bargaining contem-
plated by today’s decision is complicated in another way
that former Member Johnson and I described in our
Browning-Ferris dissent: most businesses have more
than one client, and most clients have relationships with
multiple suppliers. Therefore, in our Browning-Ferris
dissent, Member Johnson and I depicted a single clean-
ing company named “CleanCo,” which was a joint em-
ployer with three clients with the prospect of adding one
future client.17 This simplistic “CleanCo” example
looked like Figure 1 below:

17 See Browning-Ferris, supra, slip op. at 38 (Members Miscimarra
and Johnson, dissenting).
MILLER & ANDERSON, INC. 19
Starting with the same “CleanCo” business model, the
multi-employer/non-employer bargaining approved by
the Board majority today includes all of the complexity
associated with Browning-Ferris joint-employer bargain-
ing, plus additional variables caused by the fact that one
business entity (CleanCo) has no “employer” relationship
whatsoever with many bargaining unit employees (those
solely employed by Clients A, B, and C). Taking these
additional variables into account, the Browning-Ferris
CleanCo example looks like Figure 2 below:
It bears emphasis that the four multi-employer/non-
employer bargaining units depicted above are a small
sampling of potential unit configurations approved by
my colleagues today.18 However, they all suffer from the

18 The example depicted in Figure 2 involves a single supplier em-
ployer (CleanCo) and multiple user employer clients (Clients A, B and
C), resulting in three bargaining units: (1) CleanCo and Client A (with
some employees being solely employed by Client A); (2) CleanCo and
Client B (with some employees being solely employed by Client B);
and (3) CleanCo and Client C (with some employees being solely em-
ployed by Client C).
Significantly, the majority’s multi-employer/non-employer bargain-
ing unit test would also apply where a single user employer (e.g., Client
A) obtained personnel from multiple supplier employers (e.g., CleanCo
and two CleanCo competitors, which I will call TidyCo and NeatCo).
In this type of situation, my colleagues’ decision today would potential-
ly produce a single bargaining unit consisting of all four entities on the
“employer” side—CleanCo, TidyCo, NeatCo and Client A—where
some employees are solely employed by Client A, other employees are
jointly employed by CleanCo and Client A, additional employees are
jointly employed by TidyCo and Client A, and a different group of
employees are jointly employed by NeatCo and Client A. In this sce-
nario, featuring a single user employer and multiple supplier employ-
ers, there would be even more diverse interests and conflicts among the
employer parties, since each supplier employer would be a direct com-
petitor of the other supplier employers. There would also be more
“non-employers,” since in addition to each supplier having no employ-
infirmities that Member Johnson and I discussed in
Browning-Ferris, and then some. There will be greater
uncertainty and instability based on each bargaining
unit’s inclusion of some employees who lack any em-
ployment relationship (even an “indirect” one) with a
business entity, or multiple business entities, that must
nonetheless participate in negotiations. Here, as in
Browning-Ferris, my colleagues provide no clear answer
regarding questions such as (1) how the management
parties will determine between or among themselves who
is required to bargain over which subject(s) regarding
what employees; (2) how disputes will be resolved when
the management parties cannot agree;19 (3) what obliga-
tion will exist for the management parties to disclose

ment relationship with Client A’s solely employed employees, each
supplier would also have no employment relationship with employees
provided by the other suppliers.
19 As former Member Brame has observed, the type of multi-
employer/non-employer bargaining required by the Board in Sturgis—
and approved by my colleagues here—not only will require user and
supplier employers, who will have different economic interests, to
engage in multi-employer bargaining with the union, but will also entail
the need for the management parties to engage in simultaneous negotia-
tions with each other. Sturgis, 331 NLRB at 1321 fn. 62.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
information to the union(s) when the same information
may never have been shared between or among the man-
agement parties themselves; (4) how client contracts will
affect the rights and obligations of the management par-
ties, and whether the client contracts will control bar-
gaining or whether the outcome of bargaining will con-
trol what must be negotiated (or renegotiated) in client
contracts; or (5) how the Board will address jurisdiction-
al problems that arise when one management party is
covered by the NLRA and the other management party is
not.20 On top of all these issues, the NLRA protects neu-
tral parties from secondary picketing that has an object of
inducing one employer to cease doing business with an-
other, and one can anticipate arguments that Board-
mandated participation of supplier employers in multi-
employer bargaining will render supplier employers non-
neutral parties who will be denied secondary-boycott
protection they would otherwise have under Section
8(b)(4) and 8(e) of the Act. See M. B. Sturgis, 331
NLRB at 1322 (Member Brame, dissenting in part)
(“[T]he placement of the two groups of employees in the
same unit might deny the supplier employer the protec-
tion guaranteed by Section 8(b)(4)(ii)(B).”).
Moreover, similar to the CleanCo example in Brown-
ing-Ferris, the above illustration—involving only one
service (or supplier) company and three clients (or user
employers)—dramatically understates the scope of the
problems the majority has created. In the real world, by
comparison, many businesses, large and small, rely on
services or personnel provided by large numbers of sepa-
rate vendors, and many service or staffing companies
have dozens or hundreds of clients. The Board’s respon-
sibility is to discharge the “special function of applying

20 My colleagues say the Board “will address jurisdictional issues the
same way it did before,” citing Management Training Corp., 317
NLRB 1355 (1995), where a Board majority held it was appropriate to
selectively impose bargaining obligations on one entity (e.g., a private
contractor) without determining whether it exercised sufficient control
over employment terms to enable it to engage in meaningful bargain-
ing, and even though the Board lacked jurisdiction over an exempt
government entity that might otherwise be deemed a joint employer.
However, as I have explained elsewhere, Browning-Ferris emphasizes
the critical need to have participation in bargaining by all entities that
have actual or potential control over employment terms, even if the
control is indirect, never exercised, and only reserved in relevant doc-
umentation. Accordingly, I believe the Board majority’s position in
Browning-Ferris cannot be reconciled with the Board majority’s hold-
ing in Management Training that participation in bargaining by all
joint-employer entities is not essential. See Airway Cleaners, LLC, 363
NLRB No. 166, slip op. at 1–3 & fn. 8 (2016) (Member Miscimarra,
concurring). Thus, it remains to be seen whether and how the Board
can appropriately address problems arising where the Board lacks ju-
risdiction over one or more entities deemed joint employers under
Browning-Ferris, and where the Board lacks jurisdiction over one or
more non-employer entities whose participation in multi-employer
bargaining is required by the majority’s decision in the instant case.
the general provisions of the Act to the complexities of
industrial life.”21 Consistent with this responsibility, I
believe the Board must recognize that stable bargaining
relationships are unlikely to result from the type of multi-
employer/non-employer bargaining unit recognized by
my colleagues today. For this reason alone, I disagree
with the Board majority’s decision, which I believe is
contrary to one of the Board’s primary duties under our
statute—to foster reasonable certainty and stable bargain-
ing relationships. See Colgate-Palmolive-Peet Co. v.
NLRB, 338 U.S. at 362–363; NLRB v. Appleton Electric
Co., 296 F.2d at 206; Northwestern University, 362
NLRB No. 167, slip op. at 1; see also First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 678–679,
685–686 (1981) (the Board must provide “certainty be-
forehand” for employers and unions so employers can
“reach decisions without fear of later evaluations labeling
. . . conduct an unfair labor practice,” and so a union may
discern “the limits of its prerogatives, whether and when
it could use its economic powers . . . , or whether, in do-
ing so, it would trigger sanctions from the Board”).
B. The Board Cannot Properly Direct an Election in a
Multi-Employer Unit, Absent Consent, Where No Em-
ployment Relationship Exists Between Some Unit
Employees and One or More Employers
I believe the Board majority’s decision is also contrary
to our statute. Section 9(a) of the Act provides that em-
ployees have a right to representation by a labor organi-
zation “designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit
appropriate for such purposes.” Congress was especially
clear about the Board’s responsibility when evaluating
bargaining units under the Act: Section 9(b) states that
“[t]he Board shall decide in each case whether, in order
to assure to employees the fullest freedom in exercising
the rights guaranteed by this Act, the unit appropriate for
the purposes of collective bargaining shall be the em-
ployer unit, craft unit, plant unit, or subdivision thereof”
(emphasis added). See generally Macy’s, Inc., 361
NLRB No. 4, slip op. at 25–27 (2014) (Member
Miscimarra, dissenting) (describing legislative history
underlying Section 9(b) of the Act), enfd. No. 15–60022,
___ F.3d ___ (5th Cir. June 2, 2016).
Neither the Act nor its legislative history suggests that
Congress contemplated the Board would certify a bar-
gaining unit in which one or more “employer” entities do
not have any employment relationship with some of the

21 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); see also
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The
responsibility to adapt the Act to changing patterns of industrial life is
entrusted to the Board.”).
MILLER & ANDERSON, INC. 21
unit employees.22 To the contrary, as noted above, Sec-
tion 9(a) states that employees may designate or select a
representative only in a unit “appropriate” for “the pur-
poses of collective bargaining.” In turn, Section 8(a)(5),
which sets forth the bargaining duties the Act places on
employers, states an employer may not “refuse to bargain
collectively with the representatives of his employees”
(emphasis added). Section 8(b)(3), the source of the bar-
gaining requirements the statute places on unions, like-
wise states a union may not “refuse to bargain collective-
ly with an employer, provided it is the representative of
his employees . . .” (emphasis added). This statutory
language compels a conclusion that, absent the consent
of all parties to engage in multi-employer bargaining,
Congress contemplated that bargaining units would con-
sist of employees of an employer that has an employment
relationship with all employees in the unit.
As explained in Oakwood and in former Member
Brame’s dissenting opinion in Sturgis, the Act and its
legislative history preclude the Board from certifying
multi-employer bargaining units absent the consent of all
parties. Section 9(b), quoted above, refers to “the em-
ployer unit” as the broadest possible appropriate bargain-
ing unit, and the Act’s legislative history reveals that the
phrase “or subdivision thereof” in Section 9(b) was in-
tended by Congress to permit the Board to direct elec-
tions in bargaining units “not as broad as ‘employer
unit,’ yet not necessarily coincident with the phrases
‘craft unit’ or ‘plant unit.’”23 When the Act was amend-
ed in 1947, Congress specifically considered whether the

22 The majority attaches significance to the fact that Sec. 9(b)(3) of
the Act expressly precludes the Board from certifying a specific type of
bargaining unit—consisting of guards and nonguards—and the Act
contains no specific prohibition against having a single bargaining unit
consisting of some employees who are jointly employed by two em-
ployer entities, and other employees who are solely employed by a
single entity and have no employment relationship with one or more
other employer entities. However, Sec. 9 also does not expressly pro-
hibit the inclusion of animals in bargaining units, but the Board would
be hard pressed to argue that it is appropriate to certify bargaining units
that include service dogs, race horses, livestock and beasts of burden.
The fact that the Act prohibits one specific type of bargaining unit does
not mean Congress gave the Board carte blanche to include employees
of multiple employers in a single bargaining unit where one or more
“employer” entities have no employment relationship whatsoever with
some or most unit employees. Indeed, Sec. 9(a) specifically requires
that the Board only certify bargaining units that are “appropriate” for
the “purposes of collective bargaining,” and my colleagues agree that
Sec. 9(b) permits, at most, an “employer unit.” As explained in the
text, I believe the Board cannot reasonably conclude that a bargaining
unit constitutes an “employer unit” when it consists of employees of
multiple employers, one or more of which have no employment rela-
tionship with some or even most unit employees.
23 H.R. Statement on Conf. Rep. S. 1958, 79 Cong. Rec. 10297,
10299 (1935), reprinted in 1 Leg. Hist. 3260, 3263 (NLRA 1935). See
also Oakwood, 343 NLRB at 661–662.
term “employer” in Section 9(b) should include multi-
employer associations. Amendments were proposed that
would have expressly precluded multi-employer associa-
tions “except where . . . employers have voluntarily asso-
ciated themselves for the purpose of collective bargain-
ing.”24 However, the conference committee found such
language unnecessary because it merely restated existing
Board practice.25 Thus, Section 9(b) of the Act and its
legislative history establish that the Board lacks authority
to direct an election in a bargaining unit broader in scope
than the employees of a single employer. Multi-
employer bargaining requires the consent of all parties.26
I do not agree with my colleagues’ reasoning that the
petitioned-for unit is an “employer unit” because “[a]ll
the employees in such a unit are performing work for the
user employer and are employed within the meaning of
the common law by the user employer.” Member Brame
succinctly responded to the same rationale in Sturgis,
stating that “having one employer in common differs
fundamentally from having the same employer, and say-
ing otherwise does not paper over the contrary reality.”27
As depicted in Figure 2 above, the inescapable reality is
that the multi-employer/non-employer bargaining units
my colleagues approve today will consist, in part, of em-
ployees with whom one of the management participants
does not have any employer relationship whatsoever.
The first sentence in the Board majority’s opinion states
the issue in this case as whether, in the context of a user
employer/supplier employer relationship, the Board may
approve a single bargaining unit consisting, in part, of
employees whom “the user alone employs.” If the user
alone employs certain employees in the bargaining unit,
this means the Board is going beyond the “employer
unit” by requiring the participation of a second manage-
ment entity (i.e., the supplier employer) that does not

24 House Conf. Rep. No. 510 on R. 3020, reprinted in 2 Leg. Hist.
535–536 (LMRA 1947).
25 Id. (cited in M. B. Sturgis, 331 NLRB at 1315 (Member Brame,
dissenting in part)).
26 “The Board has long adhered to the rule that in order to bind an
employer to multiemployer bargaining in the first instance, there must
be evidence of that employer’s unequivocal intent to be bound by the
actions of the multiemployer bargaining representative.” Plumbers
Local 669 (Lexington Fire Protection Group), 318 NLRB 347, 348 fn.
14 (1995); see also Callier’s Custom Kitchens, 243 NLRB 1114, 1117
fn. 8 (1979) (“The essence of multiemployer bargaining is a consensu-
al, tripartite relationship between the union, the multiemployer bargain-
ing association, and the individual employer-members of the associa-
tion.”), enfd. 630 F.2d 595 (8th Cir. 1980); Retail Associates, Inc., 120
NLRB 388, 393 (1958) (“[M]utual consent of the union and employers
involved is a basic ingredient supporting the appropriateness of a mul-
tiemployer bargaining unit . . . .”); see also Charles D. Bonanno Linen
Service v. NLRB, 454 U.S. 404 (1982).
27 M. B. Sturgis, 331 NLRB at 1318 (Member Brame, dissenting in
part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
have any employer relationship with those bargaining-
unit employees. See Oakwood, 343 NLRB at 662
(“[T]he entity that the two groups of employees look to
as their employer is not the same. No amount of legal
legerdemain can alter this fact.”).
I likewise disagree with my colleagues’ rationale that
Section 9(b), which states that the Board’s bargaining-
unit determinations must “assure employees the fullest
freedom in exercising the rights guaranteed by this Act,”
actually supports the approval of multi-employer/non-
employer bargaining units. Preliminarily, Section 9(b)
places an affirmative obligation on the Board to carefully
review and make an appropriate bargaining unit determi-
nation “in each case,” which is far different from sug-
gesting that the Board should indiscriminately approve
whatever bargaining unit may result in an election.28
Similarly, Section 9(b)’s reference to the “rights guaran-
teed by this Act” requires an evaluation of the petitioned-
for unit in light of Act’s other provisions, which include
the requirement—set forth in Section 9(a)—that elections
be conducted in a bargaining unit that is “appropriate”
for “purposes of collective bargaining”; and the duty to
bargain established in Section 8(a)(5) and 8(b)(3), quoted
above, contemplates at a minimum that the employer that
participates in collective bargaining will have an em-
ployment relationship with the unit employees—i.e., all
of them.29
Based on the above considerations, I do not believe the
Board may approve a multi-employer/non-employer bar-
gaining unit, absent the consent of the parties. However,
even if the Board had the statutory authority to approve
such a unit, I agree with the Oakwood majority and the

28 As I stated in Macy’s, Inc., the Act’s “legislative history demon-
strates that Congress intended that the Board’s review of unit appropri-
ateness would not be perfunctory.” 361 NLRB No. 4, slip op. at 26
(Member Miscimarra, dissenting) (emphasis in original). Contrary to
the suggestion at footnote 37 of the majority opinion, I am not suggest-
ing that “the Act guarantees employers that they will be required to
bargain only with respect to a unit to which they have consented.”
Rather, I believe the Act precludes the Board from finding that a bar-
gaining unit is “appropriate” for the “purposes of collective bargaining”
(Sec. 9(a)), or that it consists of an “employer unit” (Sec. 9(b)), when
the unit, in fact, includes employees of multiple employers, including
one or more entities that have no employment relationship with some
unit employees.
29
My colleagues rely on a number of cases in which the Board ap-
proved of bargaining units combining employees solely employed by a
store with employees jointly employed by the store and its licensees.
See, e.g., S.S. Kresge Co. v. NLRB, 416 F.2d 1225 (6th Cir. 1969), enfg.
in relevant part S.S. Kresge Co., 169 NLRB 442 (1968). However, as
explained in Oakwood, those cases are not determinative of the issue
presented here “because no party raised, and the Board and the review-
ing courts did not consider, the statutory restrictions imposed by Sec-
tion 9(b) on nonconsensual units that are multiemployer in scope.”
Oakwood, 343 NLRB at 662; see also M. B. Sturgis, 331 NLRB at 1317
fn. 49 (Member Brame, dissenting in part).
Sturgis dissent that, as a matter of policy, the Board
should not process petitions for multi-employer/non-
employer units absent the consent of all parties. As not-
ed above, the type of bargaining unit my colleagues ap-
prove here will produce enormous challenges based on
the diverse interests of the multiple management entities
who must participate in bargaining, and it will generate
immense uncertainty regarding what management party
is responsible for negotiating over particular employment
terms (and for deciding what competing proposals are
acceptable regarding those particular terms). My col-
leagues’ recipe for addressing these challenges and un-
certainties—that each management entity will bargain
over the terms and conditions it controls—profoundly
oversimplifies the situation. As the Board indicated in
Oakwood, 343 NLRB at 663, “the reality of collective
bargaining defies such neat classifications.” Moreover,
the Board majority’s decision today compounds the
plethora of unworkable bargaining issues created by the
expanded Browning-Ferris joint-employer standard. See
Part A, supra. As the Board explained in Oakwood,
“[f]or employees to enjoy the full prospect of effective
representation, the Act contemplates that employees be
grouped together by common interests and a common
employer.” 343 NLRB at 663. “The nonconsensual
mixing of employees of different employers vitiates that
basic principle.” Id.
C. This Case Should Not Have Been Decided On the
Merits Because the Board Was Placed on Notice More
Than 11 Months Ago that No Bargaining-Unit
Employees Exist
Putting aside my disagreement with the Board
majority’s overruling of Oakwood, the instant case is
especially inappropriate to use as a vehicle for overruling
existing law to require multi-employer/non-employer
bargaining in a unit consisting, in part, of employees
with whom one or more of the management participants
does not have any employment relationship. As noted
previously, the evidence currently available to the Board
indicates that the multi-employer/non-employer
bargaining unit at issue here ceased to exist years ago.
Thus, on July 20, 2015, one of the management
entities—Tradesmen International—filed a Motion to
Dismiss Petition and Request for Review as Moot, sup-
ported by an affidavit, indicating that (i) nobody has been
employed in the multi-employer/non-employer unit for
more than 3 years, (ii) there is no expectation that any-
one will ever be employed in the unit, and (iii) the peti-
tioned-for unit is defunct.30 Instead of ruling on the

30 Tradesmen (the supplier employer), with a supporting affidavit,
indicated that the project that was the subject of the instant election
MILLER & ANDERSON, INC. 23
pending Motion to Dismiss on the basis that it pleads
facts that would render this proceeding moot, my col-
leagues have instead proceeded to reach and decide the
issue of whether an election can be directed in the peti-
tioned-for unit if any unit exists, and then to remand the
case to determine whether any unit exists, which it al-
most certainly does not. In other words, they have de-
cided an election case, overruling Oakwood in the pro-
cess, when the available evidence makes it virtually cer-
tain that no election will ever take place.
For several reasons, I believe these issues should have
been handled in the opposite manner: we should have
fairly considered and resolved the Motion to Dismiss
when Tradesmen filed it.
First, by overruling Oakwood to permit an election that
will not take place (because the petitioned-for unit does
not exist), the Board today essentially issues an advisory
opinion, where the available evidence indicates there is
no actual case or controversy, and where the absence of
any factual context or evidentiary record renders even
more abstract the new standards that have been adopted
by my colleagues. It is well established the Board does
not give advisory opinions except as to narrow jurisdic-
tional questions arising in circumstances not applicable
here. Broward County Port Authority, 144 NLRB 1539
(1963); James M. Casida, 152 NLRB 526 (1965).31
Second, we have no shortage of cases involving actual
employees whose interests will be affected by the
Board’s resolution of their dispute. Rather than expend-
ing the considerable resources required to decide this
case, which necessarily operates to the detriment of other
parties whose matters are pending before the Board, I
believe the Board should have fairly considered and ap-
propriately resolved the Motion to Dismiss. I do not

petition was completed on or before July 6, 2012; employees of
Tradesmen have not performed any work for Miller & Anderson for
more than 3 years; Tradesmen has not employed any employees within
the geographic limits of the petitioned-for unit in the past 3 years; and
Tradesmen has no expectation of performing unit work in the foreseea-
ble future. Responding to Tradesmen’s motion, the Union did not
identify any facts that contradicted the information supplied by
Tradesmen. Rather, the Union contended that “no factual record exists
regarding whether work was or will be performed by the employer(s) in
Franklin County.”
31 Under Sec. 102.98 and 102.99 of the Board’s Rules and Regula-
tions, an agency or court of any State or territory in doubt whether the
Board would assert jurisdiction over the parties in a proceeding pending
before such court or agency may file a petition with the Board for an
advisory opinion on whether the Board would decline to assert jurisdic-
tion over the parties before the agency or the court (1) on the basis of
the Board’s current standards, or (2) because the employing enterprise
is not within the jurisdiction of the National Labor Relations Act.
Otherwise, the Board does not issue advisory opinions, and petitions
seeking such opinions are subject to dismissal. See, e.g., Broward
County Port Authority, above; James M. Casida, above.
discount the significance of the substantive issues pre-
sented in this case, which have also been the subject of
extensive briefing. However, the importance of an issue
does not warrant the issuance of a decision in the absence
of an actual case or controversy. Moreover, given the
breadth of the new joint-employer standards adopted in
Browning-Ferris, the issues presented here will undoubt-
edly arise in another case involving parties whose dispute
has not been rendered moot, and the existence of an evi-
dentiary record in such a case would predictably render
any resulting Board decision more concrete and, hopeful-
ly, more understandable.
For these reasons, I believe the Board should have de-
cided Tradesmen’s Motion to Dismiss before proceeding
with the resolution of the merits. In my view, the evi-
dence presented in the Motion and supporting affidavit,
and the absence of any response creating a genuine issue
of material fact, warrants dismissal (which would effec-
tively uphold, on a different basis, the Regional Direc-
tor’s dismissal of the petition). Alternatively, the Board
could have issued an order suspending the notice and
invitation to file briefs, similar to action taken by the
Board in Steelworkers Local 1192 (Buckeye Florida
Corp.), 362 NLRB No. 187 (2015),32 and remanded this
case to the Regional Director for a determination of
whether the petition should be dismissed as moot.33
CONCLUSION
For the reasons set forth above, I respectfully dissent.
Dated, Washington, D.C. July 11, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

32 In Steelworkers Local 1192, the Board received a potentially dis-
positive motion and promptly issued an order suspending a previously
issued notice and invitation to file briefs, and the Board ultimately
withdrew the notice entirely. See Steelworkers Local 1192 (Buckeye
Florida Corp.), 362 NLRB No. 187 (2015).
33 See Jeld-Wen of Everett, Inc., 285 NLRB 118, 118 fn. 1 (1987)
(representation case was remanded by the Board, notwithstanding a
pending grant of review, based on proffered evidence suggesting the
representation issue was moot); M. B. Kahn Construction Co., 210
NLRB 1050 (1974) (finding “no useful purpose would be served by
conducting elections in the units found appropriate” and dismissing
representation petitions where evidence showed the petitioned-for units
would cease to exist based on imminent completion dates for relevant
projects); Douglas Motors Corp., 128 NLRB 307, 308–309 (1960)
(dismissing representation petition based on evidence that employer
“was in the process of effectuating a program to eliminate all its pro-
duction operations”).