## Facts

- Miller & Anderson, Inc. (M&A), an HVAC and sheet-metal contractor, employed some sheet-metal workers directly and used additional sheet-metal workers supplied by Tradesmen International, a staffing agency.
- The petitioned-for employees included (1) sheet-metal workers solely employed by M&A and (2) sheet-metal workers jointly employed by M&A and Tradesmen at specified job sites.
- Sheet Metal Workers Local 19 filed a representation petition seeking a single bargaining unit combining both groups.
- Under then-controlling Board precedent, a bargaining unit mixing solely employed user-employer employees with jointly employed user-and-supplier employees required consent of both employers.
- The Regional Director dismissed the petition because M&A and Tradesmen did not consent to the mixed unit.
- The union sought Board review, asking the Board to overrule the consent requirement and apply the earlier standard allowing mixed units if otherwise appropriate.

## Issues

1. Whether the NLRA permits a single bargaining unit combining employees solely employed by a user employer and employees jointly employed by that user employer and a supplier employer without the employers’ consent.
2. Whether such a mixed unit, if not subject to a consent requirement, should be evaluated under the Board’s traditional Section 9(b) community-of-interest standards.

## Decision

- The Board overruled the consent requirement for mixed units and held that employer consent is not required to combine solely employed and jointly employed employees of the same user employer.
- The Board reinstated the approach permitting such units when they are otherwise appropriate under traditional community-of-interest principles.
- The Board reversed the Regional Director’s dismissal of the petition and remanded for further proceedings to determine unit appropriateness under the community-of-interest test.

## Legal Principles

- A bargaining unit combining solely employed employees of a user employer with employees jointly employed by that user employer and a supplier employer may fall within Section 9(b)’s “employer unit” category.
- Employer consent is not a prerequisite to the Board’s approval of a mixed unit that includes solely employed and jointly employed employees of a single user employer.
- Unit determinations for mixed units are governed by the Board’s traditional community-of-interest analysis, including whether employees share wages, hours, and other terms and conditions of employment.
- The presence of a staffing agency as a joint employer does not, by itself, convert a proposed mixed unit into multi-employer bargaining that depends on voluntary employer assent.

## Conclusion

The Board held that mixed bargaining units of solely employed and jointly employed employees working for the same user employer may be approved without employer consent, so long as the unit satisfies traditional community-of-interest standards, and it remanded for a unit-appropriateness determination under that test.


Miller & Anderson, Inc., 364 N.L.R.B. No. 39 (2016)