M.B. Sturgis and the NLRB’s Reevaluation of the Contingent Employee’s Ability to Unionize: Ramifications and Recommendations for the User Employer

Mark D. Olivere 

In M.B. Sturgis, the National Labor Relations Board (NLRB or Board) addressed the question of whether, and under what circumstances, employees who are jointly employed by a “user” employer and a “supplier” employer may be included for representational purposes in a bargaining unit with employees who are solely employed by the user employer. As the nation’s workforce has changed over recent decades due to an increase in “temporary” and “contract” workers, the NLRB reversed a ten-year-old ruling that had effectively denied “contingent workers” the right to join unions. The M.B. Sturgis decision permits union membership for contingent workers where there is a joint employee relationship, coupled with afinding of a “community of interest.”

This comment explains that, while the decision is an important achievement for the contingent employee, it has significant ramifications for the employers who utilize this labor force. For example, the cost advantages of using the contingent employee may no longer exist. The user employer does, however, have several means available to limit the Board’s decision.

Included within this comment is an examination of the background of the contingent workforce, as well as a summary of the Board’s treatment of the contingent worker’s ability to unionize. Following this examination is an analysis of the M.B. Sturgis decision and the rationale for overruling and clarifying precedent found in Greenhoot and Lee Hospital. Furthermore, this comment will examine the deficiencies in the Board’s reasoning and will evaluate its effects on law and business.

After examining the Board’s decision, this comment will suggest several remedies that the user employer may utilize to limit the Board’s decision in M.B. Sturgis. By successfully preventing the joint employer status necessary, or by eliminating or minimizing evidence ofa “community of interest,” a user employer may increase its chances of preventing its contingent workers from unionizing and as a result increasing its costs. Other potential remedies, such as arguing a violation of section 158(b) (4) (A) of the NLRA and terminating the contract with the supplier employer, are explored as well.