The key issue that could arise out of the Miller & Anderson ruling isn’t necessarily its effect on collective bargaining or union organizing efforts, but rather on how any eventual collective bargaining agreements are used.
What’s to stop a union from using a CBA as evidence that employers are joint employers? According to one article I read, “The [ruling] created, with a gun to [employers’] head, a piece of evidence that can be used in other contexts to prove joint employment, like wage and hour cases, Occupational Safety and Health Administration complaints and workers’ comp claims.”
The simple truth is that avoiding unionization is not a primary reason that employers enter into business relationships with suppliers and staffing agencies. Even though Miller & Anderson is a return to the NLRB’s Sturgis standard, The reality is that the board is likely to apply the ‘community of interest’ test more frequently than it did under Sturgis because the board also recently expanded the concept of joint employment in Browning Ferris.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at email@example.com.