Oakwood Care Center 343 N.L.R.B. No. 76 (2004)

1. Oakwood Care Center343 N.L.R.B. No. 76 (2004) • Is a proposed bargaining unit that includes or is composed of employees that are employed jointly by a user employer and a supplier employer a multi-employer unit such that the consent of both the user and supplier employers is required for the Board to find the unit appropriate?

2. Joint Employer Relationship • A joint employer relationship exists for one or more employees when the TCE of those employees are jointly determined by more than one employer. • Supplier and user ers would be joint employers if, for example, supplier er determined the wage to be paid and the user employer determined the duties to be performed and provided supervision

3. EVENING NEWS OAKWOOD TYPICAL CASE supplier user Employees Employees Employees Employees Employees With consent of both employers

4. Previous Cases • Evening News, 154 NLRB 1494, 1965, enf’d, 372 F.2d 569 (6th Cir., 1967) • Either an employer or union may voluntarily withdraw from bargaining on multi-employer/multi-union basis • Multi-er bargaining based on consent • Wording of section 9(a) • S.S. Kresge Co., K-Mart Division v. NLRB, 416 F.2d 1225, 6th Circuit, 1999 • Board certified as appropriate a unit of employees of all licensees in K-Mart store in Jackson, MI • Employers were all linked to Kresge • the attempt to organize came through K-mart • K-mart affected the employment conditions through such things as scheduling, approval of hiring, discipline requirements.

5. Previous Cases (cont.) • Greenhoot, Inc. 205 NLRB 250, 1973 • Declines to find appropriate a unit of 14 buildings for which Greenhoot responsible for maintenance and jointly employs building ees with building owner • Each building must be a separate unit • Lee Hospital, 300 NLRB 947, 1990 • “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.” (cite to Greenhoot)

6. Previous Cases (cont.) • M.B. Sturgis, 331 N.L.R.B. No. 173 (2000) • Consent of both employers not required to include jointly employed ees in a unit with singly employed ees • A joint employer relationship not the same as multi-employer bargaining and the Board will not require the consent of the both employers (supplier and user) in order to find a unit of single-employer employees and joint employer employees appropriate; decision to be based on standard community of interest criteria. • “The scope of a bargaining unit is delineated by the work being performed by a particular employer.” Whether the work is performed by solely employed or jointly employee employees, it is done for a single employer. All employees in the unit are employed by the employer • Right to organize should not require the consent of the employer

7. Oakwood • Consent of employers required for inclusion of jointly employed employees in the same bargaining unit • Text of the act: “employer unit” the highest legal level of unit determination • Consensual nature of multi-employer bargaining • Difficulty of bargaining in a unit that includes both jointly- and singly-employed employees

9. Fundamental Questions • Should board give greater weight to interest of each joint employer in not being bound in its LR by an entity to which it has not ceded authority or to the interests of ees in having the choice of being represented for CB purposes in a unit of ees with which they have a community of interest? • Should the decision be viewed from the perspective of the day-to-day work situation, as employees might view it, or from the perspective of organizational structure, as the employer might view it?

10. Do you agree with the dissent? • “The Board now effectively bars yet another* group of employees—the sizeable number of workers in alternative work arrangements—from organizing labor unions, by making them get their employers’ permission first.  That result is surely not what Congress envisioned when it instructed the Board, in deciding 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).”  • *Board had previously found that graduate assistants and disabled workers in rehab environments not employees