M.B. Sturgis, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1298 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
M. B. Sturgis, Inc. and Textile Processors, Service
Trades, Health Care, Professional & Technical
Employees International Union Local 108, Peti-
tioner and Jeffboat Division, American Com-
mercial Marine Service Company and T.T. & O.
Enterprises, Inc. and General Drivers, Ware-
housemen & Helpers Local Union 89, affiliated
with the International Brotherhood of Team-
sters, AFL–CIO, Petitioner. Cases 14–RC–11572
and 9–UC–406
August 25, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND BRAME
These cases involve the representational rights of an
important segment of the “contingent work force.” Spe-
cifically, in these cases, we address the question of
whether and under what circumstances employees who
are jointly employed by a “user” employer and a “sup-
plier” employer1 can be included for representational
purposes in a bargaining unit with employees who are
solely employed by the user employer. Our considera-
tion of this issue has caused us to reexamine two key
Board decisions in this area: Greenhoot, Inc., 205 NLRB
250 (1973), and Lee Hospital, 300 NLRB 947 (1990).
As explained more fully below, Greenhoot stands for the
proposition that where two or more otherwise separate
user employers obtain employees from the same supplier
employer, and a union is seeking to represent the em-
ployees in a single unit for the purposes of collective
bargaining with the user employers, the unit sought is a
multiemployer unit and, under established principles of
multiemployer bargaining, cannot be found appropriate
absent the consent of the affected employers. Lee Hospi-
tal, decided 17 years after Greenhoot, extended the hold-
ing of Greenhoot to situations where a single user em-
ployer obtains employees from one or more supplier em-
ployers and a union is seeking to represent both those
jointly employed employees and the user’s solely em-
ployed employees in a single unit. The Board ruled that
such units are also multiemployer in nature and therefore
also require employer consent.
On careful consideration, we have decided to reaffirm the
decision in Greenhoot insofar as it requires employer con-
sent for the creation of true multiemployer units involving
separate user employers. We have, however, also con-
cluded that the Board erred in treating the unit at issue in
Lee Hospital as a multiemployer unit. As a consequence of
this error, a growing number of employees who are part of
what is commonly described as the “contingent work force”
are being effectively denied representational rights guaran-
teed them under the National Labor Relations Act. To re-
store these rights to them, we are today overruling Lee Hos-
pital and its progeny. We are also clarifying the decision in
Greenhoot to provide better guidance on unit questions to
those engaged in future representation proceedings involv-
ing contingent workers.

1 For a definition of these terms, see sec. II (A), “Terminology,” infra.
The critical nature of the issue we have reconsidered in
these cases is highlighted by ongoing changes in the Ameri-
can work force and workplace and the growth of joint em-
ployer arrangements, including the increased use of compa-
nies that specialize in supplying “temporary” and “contract
workers” to augment the workforces of traditional employ-
ers. We note that Greenhoot and Lee Hospital were decided
before the growth of these types of alternative employment
arrangements. It was not until 1995 that the U.S. Depart-
ment of Labor, Bureau of Labor Statistics (BLS), began
collecting and analyzing survey data regarding contingent
and alternative employment arrangements in the labor force.
The results of BLS’ most recent surveys indicate that so-
called “contingent” and “alternative employment arrange-
ments” accounted for as much as 4.3 percent of all em-
ployment in February 1999, or 5.6 million employees.
Nearly 1 percent of this nation’s workforce, or 1.2 million
employees, worked for “temporary help agencies,” and an-
other 0.6 percent (nearly 800,000 employees) worked for
“contract firms.” See Bureau of Labor Statistics, News
Release USDL 99-362, Tuesday, December 21, 1999. In
addition, a recent General Accounting Office (GAO) study
reports a tremendous growth in the “temporary help supply
industry” during the past two decades. In Contingent Work-
ers: Income and Benefits Lag Behind Those of the Rest of
Workforce, GAO/HEHS-00-76, issued July 26, 2000, the
GAO reports at page 16 that according to BLS data, from
1982 to 1998 the number of jobs in the temporary help sup-
ply industry rose 577 percent, while the total number of jobs
in the workforce grew only 41 percent. The GAO report
also noted that “certain industries and communities have
begun to rely heavily on agency temps.” Id.
I. BACKGROUND
On October 20, 1995, the Regional Director for Re-
gion 14 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 employed by M. B. Sturgis at its Maryland
Heights, Missouri plant, 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
solely by Sturgis absent the consent of both Sturgis and
Interim.2 The Regional Director subsequently denied a
motion by Sturgis to reopen the hearing to ascertain

2 Interim did not participate in the proceedings at the Regional level.
It asserts that it was not notified of the hearing. Following the granting
of Sturgis’ request for review, the Board granted Interim’s request for
intervenor status.
331 NLRB No. 173
M. B. STURGIS, INC. 1299
whether Interim would consent to the inclusion of the
temporary employees in the unit. Thereafter, in accor-
dance with Section 102.67 of the Board’s Rules, Sturgis
filed a timely request for review of the Regional Direc-
tor’s Decision, contending that the Regional Director’s
exclusion of the temporary employees from the unit
raised substantial issues regarding Greenhoot and its
progeny, and that the Regional Director erred by denying
its motion to reopen the hearing.3 On November 20,
1995, the Board granted Sturgis’ request for review.
In the meantime, on November 8, 1995, 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, Teamster Local 89, had sought to
clarify the bargaining unit of Jeffboat employees covered
by its existing collective-bargaining agreement with Jeff-
boat to include employees supplied by T.T. & O. Enter-
prises (TT&O) for use by Jeffboat. The Acting Regional
Director found that Jeffboat and TT&O are joint employ-
ers of the TT&O-supplied employees. Without reaching
any other issues presented by the petition, he then further
found that under Greenhoot and Lee Hospital the jointly
employed employees could not be included in the exist-
ing unit. He reached this conclusion because Jeffboat
and TT&O would not consent to joint bargaining.
Thereafter, Local 89 filed a request for review of the
Acting Regional Director’s dismissal of the petition, con-
tending that a substantial issue is raised by the Acting
Regional Director’s reliance on Greenhoot and Lee Hos-
pital. Jeffboat filed a conditional request for review,
contending that the Regional Director erred by finding
that it is a joint employer of the TT&O-supplied employ-
ees. Alternatively, Jeffboat argued that the Acting Re-
gional Director erred by failing to reach the Employer’s
other asserted grounds for dismissing the petition. On
May 3, 1996, the Board granted Local 89’s request for
review and Jeffboat’s conditional request for review.
The Board held in abeyance Jeffboat’s alternative argu-
ments for granting review.
On October 4, 1996, the Board issued a notice that it
would hold oral argument in these cases.4 The notice of
hearing requested that the parties address several ques-
tions regarding Greenhoot and Lee Hospital, and the
appropriate test for determining joint employer status.
The parties in both cases and a number of amici curiae
participated in the oral argument held on December 2,
1996. Preargument and/or postargument briefs were filed

3 No review was sought of the Regional Director’s joint employer
finding.
4 The Board also included a third case for oral argument, Value Re-
cycle, Inc., 33–RC–4042. The Board heard oral argument on that case.
Subsequently, the petitioner in Value Recycle withdrew its petition.
The Regional Director approved the withdrawal on January 7, 1998.
That case, therefore, is no longer before the Board for decision.
by oral argument participants and others.5 In view of the
common issues raised by these two cases, we consolidate
them for the purpose of decision.6 After carefully re-
viewing the record and all the briefs submitted by the
parties, the Board7 affirms the joint employer finding in
Jeffboat and reverses the dismissal of the petition. The
Board remands the petitions in M. B. Sturgis and Jeff-
boat. Sturgis’ motion to reopen the hearing is granted.
II. FACTS AND CONTENTIONS OF THE PARTIES
A. Terminology
To ensure the use of common terminology, the Board
asked the parties and amici in their oral arguments and in
their briefs to refer to the company that supplies employ-
ees as a “supplier” employer and the company that uses
those employees as a “user” employer. This decision
will use the same terminology.
B. M. B. Sturgis
The Petitioner (Local 108) filed a petition to represent
a unit of “all employees at the company’s plant located
on Fee Fee Road” in Maryland Heights, Missouri. At
this plant, Sturgis produces and sells flexible gas hoses.
Sturgis solely employs 34–35 employees and also uses
10–15 so-called “temporary” employees who are sup-
plied to Sturgis by Interim, a national provider of tempo-
rary help personnel. The temporaries work side-by-side
with Sturgis’ employees, perform the same work, and are
subject to the same supervision. Interim hires the tempo-
raries, determines their wages and benefits, and pays
them. All employees work the same hours, except tem-
porary employees are not permitted to work more than
40 hours per week. It is undisputed that Sturgis and In-
terim are joint employers of the temporary employees.
The Regional Director excluded the temporary employees
from the unit because they are not solely employed by Stur-
gis. The Regional Director reasoned that although Sturgis
consented to include the temporary employees in the unit,
Interim did not participate in the hearing and the record
5 The participants include: the General Counsel; American Federa-
tion of Labor and Congress of Industrial Organizations; Associated
Builders and Contractors, Inc.; Business Leadership Council; Chamber
of Commerce of the United States of America; Council on Labor Law
Equality; Driver Employer Council of America; International Union,
United Automobile, Aerospace & Agricultural Implement Workers of
America-UAW; Labor Policy Association; Master Printers of America;
National Association of Temporary and Staffing Services; National
Health and Human Service Employees Union, 1199; and Service Em-
ployees International Union.
6 Jeffboat filed a motion for further oral argument that was supported
by the National Association of Temporary and Staffing Services, Inc.
The motion was opposed by Local 89 and the AFL–CIO. The motion
for further oral argument is denied.
7 Chairman Truesdale and Members Liebman and Brame did not
participate in the December 2, 1996 oral argument, but, have consid-
ered the transcripts of that oral argument, the record in these cases, and
the briefs of the parties and the amici. Member Hurtgen is recused
from participating in these cases and he took no part in the considera-
tion or disposition of these cases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
contained no evidence that Interim consented to the inclu-
sion of the temporary employees.
Local 108 contends that a unit including the temporary
employees is inappropriate. It argues that the temporary
employees should not be included because of the short-
term nature of their employment. Local 108 also con-
tends that the temporary employees must be excluded
because the employees are jointly employed and, under
the Greenhoot doctrine as applied in Lee Hospital, they
cannot be included in the same unit with the 34–35 per-
manent employees solely employed by Sturgis.
Sturgis argues that consent by Interim should not be
required to include these temporary employees in the
unit. It contends that the Board should look only to
whether the employees share a community of interest
with its regular employees. Sturgis argues that Green-
hoot “does not stand for the principle that everyone has
cited it for, and that [Greenhoot’s] progeny has improp-
erly expanded its underlying meaning.” Sturgis posits
that the unit is not appropriate if the temporary employ-
ees are not included. Sturgis also argues that the Re-
gional Director erred by denying its motion to reopen the
record to permit Interim to be a party to the case. Sturgis
contends that it is in the Board’s interest to bring as
many interested parties as possible into these kinds of
proceedings at the outset.
Interim stated at oral argument before the Board that it
does not consent to including the temporary employees
in the unit. Further, Interim contended that Greenhoot
and Lee Hospital control this case. Interim argued that,
under those cases, the Board cannot include the tempo-
rary employees without violating the principles of mul-
tiemployer bargaining, i.e., that the employers must have
expressly consented to joint negotiations or have un-
equivocally manifested through a course of conduct an
intent to be bound by group collective bargaining.
Hughes Aircraft Co., 308 NLRB 82 (1992), citing
Greenhoot and Lee Hospital.
C. Jeffboat Division
Jeffboat, an inland river shipbuilder, operates a large
shipyard on the Ohio River in Jefferson, Indiana. TT&O,
described at oral argument by its counsel as a “temporary
supplier firm,” supplies to Jeffboat 30 first-class welders
and steamfitters. By its petition, Local 89 seeks to ac-
crete these employees to a unit of 600 production and
maintenance employees covered by a collective-bargain-
ing agreement between Jeffboat and Local 89.
In concluding that Jeffboat and TT&O are joint employ-
ers of the TT&O-supplied employees, the Acting Regional
Director found that Jeffboat controls practically all aspects
of the daily environment of the TT&O-supplied employees.
Jeffboat’s supervisors assign, direct, and oversee the daily
work of the TT&O-supplied employees. The Acting Re-
gional Director also found that Jeffboat supervisors have
authority to discipline the TT&O-supplied employees for
unsatisfactory performance or any infraction of Jeffboat’s
rules and regulations, and are responsible for monitoring the
time that TT&O-supplied employees spend on different
Jeffboat assignments.
Although the Acting Regional Director concluded that
the jointly employed employees “share a strong commu-
nity of interest” with the bargaining unit employees, he
dismissed the petition because Jeffboat and TT&O do not
consent to joint bargaining, relying on Greenhoot and
Lee Hospital. The Acting Regional Director, therefore,
found it unnecessary to reach Jeffboat’s several alterna-
tive grounds for dismissing the petition.8
Local 89 contends that the Board should cease adhering
to the Greenhoot “doctrine” as a bar to including the jointly
employed employees in the contractual unit. Local 89 ar-
gues that a requirement of consent has no basis in this case
because the unit is not a “true” multiemployer unit. With
respect to the joint employer finding, Local 89 urges that it
be affirmed, but also urges the Board to give Jeffboat’s re-
served control over terms and conditions of employment
equal weight to the evidence of actual control over terms
and conditions of employment.
Jeffboat and TT&O argue that the Board should adhere
to Greenhoot and should not retreat from the broad range
of cases in which it has been applied. They assert that
Greenhoot provides the underlying policy reasons for
prohibiting any change in this established bargaining
unit, absent mutual consent. TT&O contends that requir-
ing employer consent to include the 30 supplied employ-
ees in the unit is appropriate because otherwise, TT&O
would become bound by a collective-bargaining agree-
ment without ever having the opportunity to bargain over
the terms and conditions contained therein. Jeffboat and
TT&O also argue that TT&O is the sole employer of the
supplied employees. They contend that the evidence is
insufficient to support the Acting Regional Director’s
joint employer finding.
D. Amici Curiae
Amicus AFL–CIO contends that Greenhoot must be
overruled and the Board must return to the practice that
prevailed prior to Greenhoot, which it asserts did not require
consent for a combined unit of solely employed employees
and jointly employed employees. The AFL–CIO argues
that by granting employers the power to withhold consent to
such units, Greenhoot and its progeny bar otherwise appro-
priate units of employees who share a community of inter-
est. The result of this veto power over such units is to frag-
ment otherwise appropriate units, deprive employees of
their right to organize appropriate units, and frustrate mean-

8 Jeffboat made the following alternative arguments: (1) the jointly
employed employees are temporary employees who lack a sufficient
community of interest to be included in the unit; (2) the petition is
untimely because Local 89 unsuccessfully sought to limit the subcon-
tracting of work during the parties’ most recent contract negotiations;
and (3) the grievance-arbitration procedure is the only appropriate
means for resolving this dispute.
M. B. STURGIS, INC. 1301
ingful collective bargaining. The AFL–CIO also argues that
the Board should clarify the application of its current joint
employer standard.
The General Counsel argues that community of inter-
est, not consent, is the appropriate standard for determin-
ing whether jointly employed employees should be in-
cluded in a single unit with employees solely employed
by one of the joint employers. The General Counsel con-
tends further that as long as one of the joint employers
controls some working conditions of both of the work
forces, such a relationship is not the legal equivalent of
multiemployer bargaining. As for the joint employer
standard, the General Counsel argues that the Board
should return to a test that examines the direct or indirect
right to control employment conditions based on the real-
ity of how separate entities structure their commercial
dealings with each other.
The amici representing employer groups urge the Board
to retain Greenhoot and its progeny. They argue that
Greenhoot is rooted in the consent requirement for mul-
tiemployer bargaining. Permitting such units absent consent
will force employers into multiemployer bargaining and
thus, they assert, will violate Section 8(b)(4)(A) of the Act.
These amici also allege that abandoning Greenhoot would,
as a practical matter, impede collective bargaining, in that
an employer would be forced to bargain at the same table
with another employer or employers regarding a unit that
includes employees who are under the sole control of the
other employers. Amici such as the National Association of
Temporary and Staffing Services (NATSS) and the Council
on Labor Law Equality (COLLE) note that, while Green-
hoot, as they construe it, prohibits Board-determined units
that encompass employees of different employers, it does
not prohibit those employees from being organized into
separate units that are appropriate. Finally, these amici urge
the Board to make no change in its current joint employer
standard.
III. DISCUSSION
A. Joint Employer Status
1. The test for determining joint employer status
As a threshold matter, we must first consider whether
Jeffboat and TT&O are joint employers of the TT&O-
supplied employees, for without the requisite control
necessary to establish the joint employer relationship, the
issue presented here will not arise. The question of
whether to expand the test for determining joint em-
ployer status was presented to the Board in Value Recy-
cle, 33–RC–4042, and in Jeffboat. This issue was
briefed and discussed at oral argument.9 As noted above,
however, the petitioner in Value Recycle withdrew its
petition.10 Further, for the reasons discussed below, we
agree with the Regional Director that, under extant Board

9 Joint employer status is undisputed in M. B. Sturgis.
10 See fn. 4, above.
precedent, Jeffboat and TT&O are joint employers.
Hence, we need not address the contention in Jeffboat
that our current joint employer standard should be ex-
panded, and we will forego the opportunity to do so here.
Under current Board precedent, to establish that two or
more employers are joint employers, the entities must
share or codetermine matters governing essential terms
and conditions of employment. NLRB v. Browning-
Ferris Industries, 691 F.2d 1117, 1123 (3d Cir. 1982);
andand Riverdale Nursing Home, 317 NLRB 881, 882
(1995). The employers must meaningfully affect matters
relating to the employment relationship such as hiring,
firing, discipline, supervision, and direction. Riverdale,
317 NLRB at 882, citing TLI, Inc., 271 NLRB 798
(1984).
2. Jeffboat and TT&O are Joint Employers
As we indicated above, in Jeffboat, we must first decide
whether the TT&O-supplied employees are solely em-
ployed by TT&O. If they are solely employed by TT&O,
then they cannot be accreted into the bargaining unit of
Jeffboat employees. After carefully reviewing the record
and all the briefs of the parties and amici, we agree with the
Acting Regional Director that Jeffboat and TT&O are joint
employers of the TT&O-supplied employees.
The record fully supports the Acting Regional Direc-
tor’s finding that Jeffboat supervisors assign, direct, and
oversee the daily work of the TT&O-supplied employ-
ees; that Jeffboat supervisors have authority to discipline
TT&O-supplied employees; and that Jeffboat’s supervi-
sors are responsible for monitoring the time spent by
TT&O-supplied employees on different Jeffboat assign-
ments. In addition, there is no dispute that the contract
between Jeffboat and TT&O grants Jeffboat broad au-
thority over the TT&O-supplied employees, as it pro-
vides that they “will be subject to direction of [Jeffboat]
as to the assignment of [w]ork, including shift hours and
overtime, and to the direction of [Jeffboat] managers,
supervisors and foremen.”
Jeffboat argues that its supervision of the TT&O-
supplied employees is routine and insubstantial and,
hence, does not support a joint employer finding. We
disagree. The shipyard is a massive operation encom-
passing approximately six acres along the Ohio River,
and includes several subassembly shop areas and four
separate production lines. Jeffboat supervisors assign
TT&O-supplied employees to “strategically located areas
of the yard” where employees are needed. Jeffboat su-
pervisors direct the TT&O-supplied employees regarding
what work is to be performed at their assigned location.
There is no evidence of any assignment or direction by
the onsite TT&O representative. While these employees
are skilled and some assignments do not require “inten-
sive supervision,” other assignments require immediate
and “active supervision” by Jeffboat. This is not a case
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
where the employees usually are left to perform work on
their own without any supervision or direction.
In addition, Jeffboat supervisors have authority to dis-
cipline the TT&O-supplied employees “as they see fit,”
including issuing written and verbal warnings, and sus-
pending employees by directing that they leave the prem-
ises of the shipyard. Jeffboat’s argument regarding dis-
cipline also is contrary to the undisputed testimony by
James Pope, a first class welder, that Jeffboat’s supervi-
sors have authority to discipline the TT&O-supplied em-
ployees, and the fact that a Jeffboat supervisor and a
TT&O representative jointly issued a disciplinary warn-
ing to TT&O-supplied employees. We conclude that
Jeffboat and TT&O meaningfully affect and codetermine
essential terms and conditions of employment, including
the supervision, assignment, direction and discipline of
the TT&O-supplied employees.11
B. Reconsideration of Greenhoot and its Progeny
1. Board decisions Prior to Greenhoot
Having found that a joint employer relationship exists
in both M. B. Sturgis and Jeffboat, we now address
whether, under the statute and Board policy, employer
consent is required in order for the Board to combine in
one unit employees who are jointly employed by a sup-
plier employer and a user employer, with employees
solely employed by the user employer. We begin with
the Board’s historical treatment of units combining
jointly employed and solely employed employees.
Prior to Greenhoot, the Board routinely found units of
the employees of a single employer appropriate, regard-
less of whether some of those employees were jointly
employed by other employers. The Board used its tradi-
tional community of interest test to decide whether such
units were appropriate. Significantly, the Board identi-
fied no statutory impediment to such units, and the issue
of employer consent was neither raised nor discussed.
Until Lee Hospital, the Board never held that these units
were multiemployer units subject to the consent require-
ments of multiemployer bargaining.12
Early on, the Board included employees who worked
for concessionaires in a unit of the employees of the re-
tail department store where the concessions were located.

11 We also reject as untimely Jeffboat’s contention, made for the first
time in its post-oral argument brief, that Jeffboat and TT&O have an
independent contractor relationship. In any event, whether Jeffboat and
TT&O are joint employers is unaffected by whether TT&O is an inde-
pendent contractor because Jeffboat does not contend that the TT&O-
supplied employees are independent contractors. See NLRB v. Grey-
hound Corp., 368 F.2d 778 (5th Cir. 1966), relying on Boire v. Grey-
hound, 376 U.S. 473, 481 (1964).
12 “Under established Board rules . . . a [multiemployer] unit is held
to exist only where the evidence establishes that that the several em-
ployers expressly conferred upon their joint bargaining agent the power
to bind them by its negotiations or that the employers have by an estab-
lished course of conduct unequivocally manifested a desire to be bound
in future collective bargaining by group rather than individual action.”
Bennett Stone Co., 139 NLRB 1422, 1424 (1962).
The concessionaires in those cases operated departments
within the user’s store. Some of these employees were
referred to as “employees” of the concessionaire or as
being “retained” by the concessionaire to work in the
store. See Louis Pizitz Dry Goods Co., 71 NLRB 579
(1946); Taylor’s Oak Ridge Corp., 74 NLRB 930 (1947);
Denver Dry Goods, 74 NLRB 1167, 1176 (1947). Al-
though these concessionaires operated whole depart-
ments, the Board included the employees in these de-
partments in the unit with the solely employed depart-
ment store employees. In these cases the Board found
that there was sufficient evidence to conclude that the
department store was an employer of the employees, and
that the employees shared a community of interest with
the store’s solely employed employees. The Board ex-
cluded employees in the leased department, however, if
they were solely employed by the concessionaires. In
those cases, the Board noted that they did not share “suf-
ficient interests” with the employees in the other depart-
ments 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 (1949). In the
1950s, the Board continued to include the employees of
the leased departments in units with the store’s employ-
ees. See, e.g., Stack & Co., 97 NLRB 1492 (1952).
In a series of cases in the 1960s, the Board recognized
that control over leased employees may be shared be-
tween user and supplier employers and, hence, the em-
ployees may be jointly employed. See Frostco Super
Save Stores, 138 NLRB 125 (1962). Notwithstanding
this shared employment relationship, the Board contin-
ued to sanction units combining solely employed de-
partment store employees with jointly employed leased
employees, applying the community of interest test to
decide whether jointly employed employees should be
included in the unit. See id. at 129;13 Thriftown, Inc.,
13 In Frostco, the Board did permit some of the jointly employed
employees to decide whether they wished to be included in the overall
store unit, or to be separately represented, via a self-determination
election. The circumstances in Frostco illustrate (1) that the Board
found no impediment to combining employees of solely em-
ployed/jointly employed 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 conces-
sions, 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 employ-
ees, was appropriate. In addition, the Board permitted the Frostco
employees to decide whether they wished to be represented in the over-
all unit or separately “in view of all the indicia of separateness” such
employees enjoyed. The Board found, however, that the jointly em-
ployed employees sought by the culinary employees “do not comprise a
group with sufficiently disparate employment interest” and the Board
dismissed the petition for a separate unit of these employees. 138
NLRB at 129. Later Board cases clearly found units of solely em-
ployed and jointly employed employees appropriate. See, e.g., Spartan
Department Stores, 140 NLRB 608, 611 fn. 8 (1963).
M. B. STURGIS, INC. 1303
161 NLRB 603 (1966); and Jewell Tea Co., 162 NLRB
508 (1966). In Thriftown, the Board majority included
jointly employed employees of leased departments in the
same bargaining unit with the solely employed depart-
ment store employees. Chairman McCulloch and Mem-
ber Fanning, in dissent, objected to the joint employer
finding, but 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 employed gro-
cery and meat department employees was found appro-
priate because of the “indicia of separateness” 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., 416 F.2d 1225 (6th Cir.
1969), enfg. in relevant part, S. S. Kresge, 169 NLRB
442 (1968). The employer contended that “to compel
unwilling employers to bargain as joint employers will
disrupt the collective-bargaining process because each
licensee may have independent ideas about appropriate
labor policy.” 416 F.2d at 1231. The court specifically
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 on the store’s operation, [and] will prejudice the
licensees and not produce sound and stable collective
bargaining relationships.” See Gallenkamp Stores Co. v.
NLRB, 402 F.2d 525, 531 (9th Cir. 1968). The Gallenk-
amp 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.
These cases clearly demonstrate that combined units of
user and supplier employees are not a novel idea. At the
end of the 1960s, no Board or court decision had barred,
absent employer consent, units combining solely em-
ployed employees and jointly employed employees on
the basis that they constituted multiemployer units. To
the contrary, the Board and the courts perceived no statu-
tory impediments to such units. Inclusion of the jointly
employed employees was subject only to the Board’s
traditional community of interest standards. 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).
2. Greenhoot
In early 1973, the Regional Director for Region 5 is-
sued a Decision and Direction of Election for a unit of all
licensed and unlicensed engineers, apprentice engineers,
and maintenance employees at 14 office buildings man-
aged by Greenhoot in the District of Columbia. Green-
hoot contended that the Regional Director erred in find-
ing that Greenhoot was the sole employer of the employ-
ees in the unit. The Board agreed and reversed the Re-
gional Director. Greenhoot, Inc., 205 NLRB 250 (1973).
The Board described the unit sought by the petitioner
as one consisting of employees in 14 separate office
buildings. Greenhoot argued that the respective building
owners were the sole employers of the petitioned-for
employees, or in the alternative, that Greenhoot was a
joint employer with each of the building owners and,
therefore, a combined unit was not appropriate. The
Board agreed with Greenhoot’s alternative contention,
finding that “both the individual owner and the manage-
ment agent, Greenhoot, have significant employer func-
tions.” 205 NLRB at 251. The Board concluded that
“Greenhoot and each of the Building owners are joint
employers at each of the respective buildings.” Id.
Without further discussion, the Board then found that:
In this circumstance, there is no legal basis for estab-
lishing a multiemployer unit absent a showing that the
several employers have expressly conferred on a joint
bargaining agent the power to bind them in negotia-
tions or that they have by an established course of con-
duct unequivocally manifested a desire to be bound in
future collective bargaining by group rather than indi-
vidual action. Id.
As there was no consent for a multiemployer unit, the Board
found “separate units at each location” to be appropriate,
rather than the combined unit sought by the petitioner. 205
NLRB at 251. In Greenhoot, therefore, the Board essen-
tially found that a unit that combined employees employed
by Greenhoot and 14 separate employers—the 14 building
owners—constituted a multiemployer unit.14
3. The Lee Hospital extension of Greenhoot
Following Greenhoot, and before Lee Hospital, the Board
continued to find appropriate units of solely employed em-
ployees and jointly employed employees without suggesting
that they implicated any multiemployer bargaining concern.
For example, in Globe Discount City, 209 NLRB 213
(1974), the Board found that the Regional Director erred in
excluding jointly employed employees from a unit of
Globe’s employees (and other jointly employed employees).
The Board found that the jointly employed employees
shared “a substantial community of interest” with the solely

14 As we discuss below, the Board did not explain why the union
could not be certified as the representative of all the jointly employed
employees for purposes of bargaining solely with Greenhoot, without
the consent of the building owners.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
employed and other jointly employed store employees and
that a unit combining them was an appropriate unit. In sev-
eral unfair labor practice cases, the Board also imposed a
bargaining obligation on the joint employers of employees
in contractual units that included employees solely employed
by 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 (9th Cir. 1980); and U.S. Pipe & Foundry Co.,
247 NLRB 139, 142 (1980). The Board found that “no pol-
icy of the Act” was offended by imposing a bargaining obli-
gation “for that portion of the overall unit.” Sun-Maid
Growers, 239 NLRB at 353.
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. In Western Temporary Services v. NLRB, 821 F.2d
1258, 1265 (7th Cir. 1987), the court found that a user
employer, Classic, was not prejudiced by the inclusion of
jointly employed part-time employees supplied by West-
ern Temporary Services in a unit with Classic’s solely
employed employees.
In 1990, however, 17 years after Greenhoot was decided,
the Board in Lee Hospital—without any rationale—
changed its analytical course and brought units like those
here within the ambit of Greenhoot and the consent re-
quirement of multiemployer bargaining. Lee Hospital, 300
NLRB 947, 948 (1990). In Lee Hospital, the petitioner
sought a unit of certified registered nurse anesthetists
(CRNAs). The Regional Director found that CRNAs did
not constitute an appropriate unit separate from other hospi-
tal professionals, because under the “disparity of interest”
test applied then to health care institutions, the CRNAs pos-
sessed no sharper than usual differences from the other pro-
fessionals. The petitioner sought review of this decision
arguing, among other things, that the CRNAs were jointly
employed by Lee Hospital and Anesthesiology Associates,
Inc. (AAI),15 and that this joint employer relationship further
evidenced a disparity of interest between the CRNAs and
the other hospital professionals.
In affirming the Regional Director’s dismissal of the
petition, the Board examined the joint employer allega-
tion raised by the petitioner. The Board reasoned that, if
the CRNAs were jointly employed, a separate CRNA
unit would be appropriate because Lee Hospital would
not consent to include jointly employed CRNAs in a unit
with its solely employed professionals. The Board con-
cluded that the combined unit would run afoul of Green-
hoot, but notably did not explain or reconcile the factual or
legal differences between Greenhoot and Lee Hospital. It
simply cited Greenhoot in a footnote following the proposi-
tion that “as a general rule, the Board does not include em-
ployees in the same unit if they do not have the same em-
ployer, absent employer consent.” 300 NLRB at 948 fn. 12.

15 AAI contracted with the hospital for the operation of the anesthe-
siology department and recovery room.
The Board ultimately did not apply this rule in Lee Hospital
because it concluded that Lee Hospital and AAI were not
joint employers of the CRNAs.
In later cases, the Board applied the “rule” of Lee Hos-
pital to prohibit any unit that would combine jointly em-
ployed employees with solely employed employees of
one of the joint employers, absent consent of both em-
ployers. See, e.g., International Transfer of Florida, 305
NLRB 150 (1991); and Hexacomb Corp., 313 NLRB 983
(1994). No case since Lee Hospital has discussed, ex-
plained, or rationalized this new rule.
4. Analysis and conclusions
a. Lee Hospital incorrectly decided
We find today that Lee Hospital was incorrectly de-
cided. Plainly stated, we conclude that Lee Hospital did
not involve multemployer bargaining and therefore no
consent was required. We find that a unit composed of
employees who are jointly employed by a user employer
and a supplier employer, and employees who are solely
employed by the user employer, is permissible under the
statute without the consent of the employers.
We begin, as we must, with the statute. Section 9(b)
provides:
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.
It is beyond dispute that, under this section of the Act, a unit
encompassing all of an employer’s employees, or a sub-
group of such employees, can constitute an appropriate unit.
The Board does not require “consent” of the employer in
order for employees to be represented for collective bargain-
ing in an employer-wide unit. Rather, the appropriateness
of such units is governed by our traditional community of
interest test. See NLRB v. Action Automotive, 469 U.S. 490,
494 (1985); Kalamazoo Paper Box, 136 NLRB 134, 137
(1962); and Globe Discount City, 209 NLRB 213 (1974).
But where the unit is multiemployer in scope, the Board has
consistently held that such units are not appropriate absent
the consent of all parties. See, e.g., Rayonier Inc., 52 NLRB
1269 (1943); Pacific Metals Co.; 91 NLRB 696, 699
(1950); Chicago Metropolitan Home Builders Assn., 119
NLRB 1184, 1186 (1957); and Bennett Stone Co., 139
NLRB 1422, 1424 (1962). After carefully reviewing our
precedent and the policy questions raised, we find that the
units at issue—all the employees performing work on behalf
of the user employer (e.g., M. B. Sturgis and Jeffboat)—do
not constitute multiemployer units requiring consent.
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 consistent
with precedent. The scope of a bargaining unit is deline-
ated by the work being performed for a particular em-
M. B. STURGIS, INC. 1305
ployer. In a unit combining the user employer’s solely
employed employees with those jointly employed by it
and a supplier employer, all of the work is being per-
formed for the user employer. Further, all of the em-
ployees in the unit are employed, either solely or jointly,
by the user employer. Thus, it follows that a unit of em-
ployees performing work for one user employer is an
“employer unit” for purposes of Section 9(b).
Our view is consistent with well-settled precedent that
both precedes and postdates Greenhoot. We adhere to
these cases with the knowledge that, until Lee Hospital,
neither the Board nor the courts ever found the inclusion,
in a unit of the user’s employees, of employees supplied
by other employers and jointly employed by the user to
involve multiemployer bargaining. Breaking with this
historical treatment of such units, the Board’s analysis in
Lee Hospital implicated multiemployer bargaining by in
effect treating “the employer” of the jointly employed
employees as a completely separate and distinct em-
ployer from either the user employer or the supplier em-
ployer. Only in this way could the Board conclude that
combining the jointly employed employees in a unit with
the employees of the user employer could violate the
statute’s preclusion of units broader than employer-wide.
We decline to accept the faulty logic of Lee Hospital
(and our dissenting colleague) that a user employer and a
supplier employer—both of which employ employees
who perform work on behalf of the user employer—are
equivalent to the completely independent employers in
multiemployer bargaining units. No pre-Lee Hospital
Board conceived of such units as multiemployer units,
and neither do we.
In contrast, cases like Greenhoot involve multiple user
employers whose only relationship to each other is that
they obtain employees from a common supplier em-
ployer. In such cases, the union seeks to represent a unit
that includes employees of all of the users. Thus, it is
clear that the unit is a multiemployer unit and therefore
consent of the separate user employers would be required
before the Board could direct an election.
Our dissenting colleague contends that the units at is-
sue in the cases before us constitute multiemployer units.
They do not.16 The dissent flatly ignores Board prece-
dent permitting such units without consent, before and
after Greenhoot. It attempts to distinguish S. S. Kresge v.
NLRB, on the basis that it involved a joint venture, but
ignores that the court did not rely on this rationale or
otherwise limit its holding in this manner. It is beyond
dispute that S. S. Kresge, and the numerous similar cases
cited above, permitted jointly employed employees to be
included in units with employees of one of the joint em-

16 We note that our colleague concedes, as well he must, that where a
union seeks to represent in a single unit the employees jointly em-
ployed by two employers, such a unit is not a multiemployer unit and
no consent of the employers is required. We perceive no legal distinc-
tion between such units and those at issue in the cases before us.
ployers without regard to whether the employers con-
sented.
Our colleague also contends that the jointly employed
employees and the solely employed employees in each
unit do not have the “same” employer as a matter of law
and logic. Unlike true multiemployer bargaining, how-
ever, all the employees in fact share the same employer,
i.e., the user employer. Separating “regular” employ-
ees—i.e., the solely employed—from the “temporaries”
who may (as in the instant cases) share the same classifi-
cations, skills, duties, and supervision, creates an artifi-
cial division that is not required by the statute. We there-
fore overrule Lee Hospital and find no statutory require-
ment of employer consent to a unit combining solely and
jointly employed employees of a single user employer.
As we noted at the outset of this section, prior to Lee
Hospital the Board applied the community of interest test
to decide whether to include jointly employed employees
in units with solely employed employees. See Globe
City Discount, 209 NLRB 213 (1974). As we find no
statutory obstacles to such units today, we will return to
the application of this traditional test to determine the
appropriateness of these units.
b. Community of interest analysis applies
The community of interest test examines a variety of
factors to determine whether a mutuality of interests in
wages, hours, and working conditions exists among the
employees involved. Kalamazoo Paper Box, 136 NLRB
134, 137 (1962); Swift & Co., 129 NLRB 1391 (1961);
Continental Baking Co., 99 NLRB 777, 782-783 (1952);
and 15 NLRB Ann. Rep. 39 (1950). This test is both
well-settled in our case law and accepted by the courts.
See, e.g., NLRB v. Action Automotive, 469 U.S. at 494.
The Supreme Court has stated that our unit determina-
tions applying this standard lie “largely within the discre-
tion of the Board, whose decision, if not final, is rarely to
be disturbed.” South Prairie Construction v. Operating
Engineers, 425 U.S. 800, 805 (1976) (per curiam).
Under Section 9(b) of our statute, a group of an em-
ployer’s employees working side by side at the same
facility, under the same supervision, and under common
working conditions, is likely to share a sufficient com-
munity of interest to constitute an appropriate unit. See
Swift & Co., 129 NLRB 1391 (1961); and Kalamazoo
Paper Box, 136 NLRB 134 (1962). That some of the
employees working for that employer may have some
differing terms and conditions of employment from those
of their colleagues does not ordinarily mean that those
employees cannot be included in the same unit, although
it might, in some circumstances, permit them to be repre-
sented in a separate unit. See, e.g., Berea Publishing
Co., 140 NLRB 516, 518 (1963).
By our decision today, we do not suggest that every
unit sought by a petitioner, which combines jointly em-
ployed and solely employed employees of a single user
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
employer, will necessarily be found appropriate. As in
the Board’s pre-Greenhoot cases, application of our
community of interest test may not always result in
jointly employed employees being included in units with
solely employed employees. See, e.g., United Stores of
America, 138 NLRB 383 (1962); and Franklin Simon &
Co., 94 NLRB 576 (1951). We do not prejudge the out-
come of this analysis in the cases before us. Having de-
cided above that the statute does not require consent of
both employers for the establishment of such units, we
simply find that their appropriateness will be decided
based on their particular circumstances, using the
Board’s traditional analysis.
In the particular unit issues before us, we note that the
Regional Director in M. B. Sturgis did not decide
whether the jointly employed employees share a com-
munity of interest with M. B. Sturgis’ employees. Simi-
larly, in dismissing the petition in Jeffboat, the Acting
Regional Director did not reach the issue whether an
accretion of the jointly employed employees to the exist-
ing unit is warranted. We therefore do not determine the
appropriate units in the cases before us. We remand the
proceedings to the Regional Directors to decide those
issues consistent with this decision and applicable com-
munity of interest and accretion principles.
c. Rejection of arguments opposing the overruling
of Lee Hospital
Our dissenting colleague and several of the parties and
amici posit a host of concerns about the path we chart
today. We reject the contention that finding these units
appropriate presents impediments to meaningful bargain-
ing because employers are compelled to bargain at the
table over employees with whom they have no employ-
ment relationship. To the contrary, in these units each
employer is obligated to bargain only over the employees
with whom it has an employment relationship and only
to the extent it controls or affects their terms and condi-
tions of employment.17
We also reject the contention that an employer that
controls only some aspects of the employment relation-
ship cannot engage in meaningful bargaining. Compare
Management Training, 317 NLRB 1355 (1995), in which
the Board found that in determining whether to assert
jurisdiction over an employer with close ties to a gov-
ernment entity, it only would consider whether the em-
ployer meets the statutory definition of “employer” under
Section 2(2) of the Act. The Board observed in that case
that the fact that it has no jurisdiction over governmental
entities and thus cannot compel them to sit down at the
bargaining table does not destroy the ability of the non-

17 Our dissenting colleague also raises various concerns regarding
the contractual obligations of the respective employers in the event of
an accretion of jointly employed employees to an existing unit of solely
employed employees. Those issues are not before us in these cases,
and we do not purport to pass on them.
exempt employer to engage in effective bargaining over
terms and conditions of employment. 317 NLRB at 1358
fn. 16. It follows here that, despite the absence of an
employment relationship between the supplier employer
and the solely employed employees of the user employer,
the supplier is still able to bargain to the extent that it
controls the terms and conditions of employment of the
jointly employed employees. Thus, the joint employers
must bargain over the terms and conditions of employ-
ment of their employees, and the sole employers are ob-
ligated to bargain over the terms and conditions of em-
ployment of their employees. See also Western Tempo-
rary Services v. NLRB, 821 F.2d at 1265, in which the
court found that a user employer, Classic, and its supplier
Western, need only negotiate with the union over their
jointly employed employees to the extent that they each
control their conditions of employment. We impose no
greater requirement here.
The dissent argues that requiring the joint employers to
engage in “involuntary” bargaining together “injects into
their relationship duties and limitations beyond those
established and allocated in their agreement, creating
severe conflicts in the underlying business relationship
and rendering impossible the productive collective bar-
gaining the majority envisions.” Contrary to our col-
league, we are confident that bargaining in these units is
feasible. Indeed, two courts of appeals have considered
and rejected precisely the concerns raised by the dissent.
Thus, in S. S. Kresge v. NLRB, the Sixth Circuit rejected
a similar challenge to a unit combining both jointly em-
ployed and solely employed employees, noting that
whether such “practical” difficulties will occur is “specu-
lative.” 416 F.2d at 1231, quoting from the Ninth Cir-
cuit’s opinion in Gallenkamp Stores v. NLRB, 402 F.2d
at 531, in which that court stated that just as the employ-
ers there had “worked out their diverse business prob-
lems to meet the needs of their joint business enterprise
. . . [l]ike efforts should be as effective in their bargain-
ing with the union.” Since employers will be obligated
to bargain only over those terms and conditions over
which they have control, we believe, as did the courts in
S. S. Kresge and Gallenkamp¸ that employers and unions
will be able to formulate appropriate and workable solu-
tions to logistical issues that may arise. The collective-
bargaining process inherently depends on the parties’
willingness and ability to shape solutions to such prob-
lems. Although it is implied by the dissent and amici
that bargaining in such units may well be futile because
certain terms are set by different employers, such argu-
ments have been rejected by the Board and the Supreme
Court as exaggerated. See Ford Motor Co. v. NLRB, 441
U.S. 488, 502-503 (1979) (prices of third-party provided
vending machine food and beverages, although set by
third-party supplier rather than by employer, are manda-
tory subject of bargaining because employer’s right to
M. B. STURGIS, INC. 1307
change suppliers gives it leverage over such services and
prices).
With respect to our dissenting colleague’s concern re-
garding bargaining conflicts among the solely employed
and jointly employed employees, or among the user and
supplier employers, we are confident that the collective-
bargaining process encouraged by the Act, which covers
a wide variety of activity, is capable of meeting the
changing conditions and challenges posed by bargaining
in these units. See Ford Motor Co. v NLRB, 441 U.S. at
496 fn. 9. Even in units composed only of solely em-
ployed employees, it is common for groups of employees
to have differing, even competing, interests. Unions and
employers are routinely called upon to handle such dif-
ferences, and do so successfully.18
Nor do we agree with our dissenting colleague’s
speculation that, unless jointly employed and solely em-
ployed employees are represented in separate bargaining
units, suppliers of temporary labor will be enmeshed in
labor disputes over which they have no control, contrary
to the policy of the secondary boycott laws. If supplier
employers are in fact neutrals in labor disputes, they will
enjoy such protections as the secondary boycott laws
afford. See National Woodwork Manufacturers Assn. v.
NLRB, 386 U.S. 612, 626–627 (1967) (noting that lawful
primary picketing may have a severe impact on neutrals).
Whether supplier employers are neutrals will depend on
the particular facts. Cf. Electrical Workers Local 761
(General Electric) v. NLRB, 366 U.S. 667 (1961)
(whether contractors working on the situs of a primary
dispute are neutrals turns, in part, on whether the work
performed by the contractor is unrelated to the normal
operations of the primary employer); Television Artists
(Baltimore News American Div.), 185 NLRB 593, 598–
601 (1970), enfd. 462 F.2d 887 (D.C. Cir. 1972)
(whether a corporate division is a neutral person with
respect to a union’s dispute with another division at an-
other location turns on the nature of the entities’ day-to-
day operations and the locus of control over the labor
policies at issue). See generally NLRB v. International
Longshoremen’s Assn., 473 U.S. 61, 81 (1985) (relevant
inquiry is “whether the union's efforts are directed at its
own employer on a topic affecting employees’ wages,
hours, or working conditions that the employer can con-
trol”). We do not agree with our dissenting colleague’s

18 See S. S. Kresge, 416 F.2d at 1232, in which the court noted:
There is the possibility that the employees in the departments oper-
ated by Kresge will dominate union policy. This, however, is a
problem that is germane to all units encompassing different de-
partments with divergent interests. Indeed, the same problem could
arise if the appropriate unit consisted solely of Kresge employees,
because employees in larger Kresge departments 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 problem will not be
serious if it does occur.
assumption that our decision today appreciably increases
the existing difficulty of distinguishing between primary
and secondary activity. See Electrical Workers Local
761 (General Electric) v. NLRB, 366 U.S. at 673–674
(discussing the difficulty of “drawing lines more nice
than obvious”); and Railway Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 388 (1969) (concluding that
the “fuzziness” of the primary-secondary distinction
“stems from the overlapping characteristics of the two
opposing concepts, and from the vagueness of the con-
cepts themselves”).
We also reject our colleague’s view that our alleged
one-size-fits-all formula overlooks the divergent tempo-
rary employment arrangements in our economy and
reaches out to decide issues not before us. There is but
one set of labor laws in our country, and it is our obliga-
tion to respond to developing policy issues that come
before the Board. In addition, our return to applying the
community of interest test to these units is the antithesis
of a one-size-fits-all approach, for it traditionally has
been a test that considers all the circumstances. See, e.g.,
Kalamazoo Paper Box, 136 NLRB 134, 137 (1962).
While we find no statutory impediment to these units, the
employees still must share a community of interest.
The dissent contends that the Board’s decisions in Lee
Hospital and Greenhoot “were more protective of em-
ployee rights” because they upheld the right of employ-
ees to choose their representative and to be represented in
a unit of employees of the same employer “with whom
they share a community of interest.” Contrary to our
colleague, it is Lee Hospital that has fragmented and
splintered appropriate units of employees who would
otherwise share a community of interest. From the van-
tagepoint of the employees, the decision in Lee Hospital
fragments groups of employees who share common in-
terests and working conditions into smaller groups with
diminished bargaining power.
Although we do not decide whether the Interim-
supplied employees must be included in the unit with the
solely employed Sturgis employees, or whether the
TT&O-supplied employees are an accretion to the collec-
tive-bargaining unit of Jeffboat employees, issues not
reached by the Regional Directors’ decisions, both cases
are illustrative of this fragmentation of units. In each
case, the record contains at least some facts that could
support including the Interim-supplied and TT&O-
supplied employees in the units with the Sturgis and
Jeffboat employees, respectively.19 But no matter how
19 In M. B. Sturgis, the temporaries work side-by-side with regular
employees, perform the same work, and are subject to the same super-
vision. All employees work the same hours, although temporary em-
ployees cannot work more than 40 hours per week. The wages and
benefits of the temporaries and regular employees differ, however. In
Jeffboat, the TT&O employees work alongside Jeffboat’s employees,
share supervision and direction, perform similar work, and are subject
to common work and safety rules.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
compelling their community of interest may be with the
solely employed employees, Lee Hospital prohibits their
inclusion absent consent of all employers.
For the reasons we have outlined above, we believe the
Board’s Lee Hospital policy regarding these units has the
potential for denying numerous affected employees the
same Section 7 rights to self-organization accorded other
employees under the Act. The Board’s mandate under
Section 9(b) is to decide appropriate bargaining unit
questions so as to “assure to employees the fullest free-
dom in exercising the rights guaranteed by this Act.” In
accordance with that mandate, the Board has in the past
altered previously-adopted policies where it has found
that those policies unfairly prejudice the collective-
bargaining rights of employees. Here too, unless we are
to jettison important statutory rights for a growing seg-
ment of the work force, we should alter our policy. See,
e.g., Metropolitan Life Insurance Co., 56 NLRB 1635
(1944); Quaker City Life Insurance Co., 134 NLRB 960
(1961); AND Metropolitan Life Insurance Co., 156
NLRB 1408 (1966) (Board policy allowing only state-
wide or employer-wide units of insurance agents
changed after 17 years because it was apparent to the
Board that effect of policy was to frustrate organization
and deny insurance company employees the same rights
enjoyed by employees in other industries).20 That the
holding of Lee Hospital makes it more difficult for em-
ployees to obtain union representation, or results in
fragmented units if they are successfully organized,
raises genuine doubts about the wisdom of its continua-
tion. In our view, it undermines the Board’s ability to
make collective bargaining reasonably possible for the
employees affected by this policy.
d. Clarification of Greenhoot
Having reversed Lee Hospital’s mistaken extension of
multiemployer principles from Greenhoot, we return to
Greenhoot to clarify its application. As described above,
the application of multiemployer principles in Greenhoot
led to rejection of a unit that would have combined the
jointly employed employees of the 14 separate employ-
ers (the building owners) because of the absence of em-
ployer consent. The Board did not, however, pass on
whether consent would have been required had the union
sought to be certified only as the employees’ representa-
tive for purposes of collective bargaining with Greenhoot
alone. We find that it would not. If a petitioner seeks to
bargain only with the supplier employer, a petitioned-for
unit of all the employees of a single supplier is not a mul-
tiemployer unit because the petition is seeking to repre-

20 Cf. NLRB v. Hearst Publications, 322 U.S. 111, 130 (1944) (“Eve-
ryday experience in the administration of the statute gives it [the Board]
familiarity with the circumstances and backgrounds of employment
relationships in various industries, with the abilities and needs of the
workers for self organization and collective action, and with the
adaptability of collective bargaining for the peaceful settlement of their
disputes with their employers”).
sent the employees vis a vis a single employer. If the
petitioner names only the supplier employer in its peti-
tion, there is no statutory impediment to a supplier-wide
unit under the Act.21 Hence, while we are today reaf-
firming Greenhoot, we wish to make clear that Green-
hoot’s requirement of employer consent to the creation of
a multiemployer unit has no application when the bar-
gaining relationship sought is only with the supplier em-
ployer.22
Hence, we limit Greenhoot: a petition that names as
the employers unrelated employers will be treated as
seeking an inappropriate multiemployer unit absent the
consent of all the employers; a petition that 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, does not involve a
multiemployer unit.
CONCLUSION
We hold today that consent requirements for multiem-
ployer bargaining among separate and independent em-
ployers do not apply to units that combine jointly em-
ployed and solely employed employees of a single user
employer. We will apply traditional community of inter-
est factors to decide if such units are appropriate. For all
the reasons set forth in this decision, we overrule Lee
Hospital to the extent it is inconsistent with our decision
today. We also clarify Greenhoot to permit units of the
employees employed by a supplier employer, such as
Greenhoot, provided the units are otherwise appropriate.
We remand these cases to the Regional Directors to
decide the unit questions without regard to the restriction
imposed by Lee Hospital.23 In M. B. Sturgis, the case is
21 See Chelmsford Food Discounters, 143 NLRB 780, 781 (1963), in
which the petitioner sought to name only Chelmsford as the employer,
and the Board found it unnecessary to reach the intervenor’s contention
that Chelmsford was a joint employer with another employer, as
Chelmsford was an employer of the petitioned-for employees and the
requested unit was an appropriate unit.
22 A unit of the employees of a single supplier employer is appropri-
ate even though some terms and conditions of employment may be
controlled by another employer, i.e., by a user employer unnamed in
the petition. As we explained above, Management Training Corp., 317
NLRB 1355, teaches that the absence of one of the joint employers at
the bargaining table does not destroy the ability of the joint employer
who is at the table (here, the supplier) to engage in effective bargaining
to the extent that it controls the terms and conditions of employment of
its employees. See Western Temporary Services v. NLRB, 821 F.2d at
1265. If a petitioner seeks only to bargain with the supplier, the unit is
not a multiemployer unit and employer consent is not required.
23 We note that in M. B. Sturgis, Sturgis contended that the Regional
Director erred by denying its motion to reopen the hearing to ascertain
Interim’s consent and to permit Interim to otherwise participate in the
proceeding. Although we believe that consent is not necessary should
the unit be found appropriate in that case, we will grant Sturgis’ request
to permit Interim to participate on the remand because it did not receive
notice and did not participate in the hearing. It is important in these
cases that all interested parties be accorded due process and notice of an
opportunity to be heard on these petitions. As the M. B. Sturgis case
illustrates, parties with an interest, such as potential joint employer
temporary agencies or leasing firms, may not be notified of the hearing.
M. B. STURGIS, INC. 1309
remanded to determine whether the Interim-supplied
temporary employees must be included in the unit. In
Jeffboat, the case is remanded to the Regional Director to
determine whether the TT&O-supplied employees are an
accretion to the contractual bargaining unit, including the
consideration of Jeffboat’s other contentions for dismiss-
ing the petition, which were held in abeyance for our
consideration of the Lee Hospital and joint employer
issues.
ORDER
The Acting Regional Director’s finding that Jeffboat
and TT&O are joint employers is affirmed. The Acting
Regional Director’s dismissal of the petition in Jeffboat,
is reversed and the petition is reinstated. M. B. Sturgis’
motion to reopen the record is granted. The petitions in
M. B. Sturgis and Jeffboat are remanded to Region 14
and Region 9, respectively, for consideration consistent
with this Decision.

MEMBER BRAME, dissenting in part.
Contrary to the majority’s conclusion, the instant cases
provide no basis for disturbing the principle prescribed
by the statute, long accepted by the Board and the courts,
and properly reflected in Greenhoot, Inc., 205 NLRB
250 (1973), and Lee Hospital, 300 NLRB 947 (1990),
that employers may not be coerced into participation in
multiemployer bargaining. Applying this principle, I
would find that the units at issue here, by including em-
ployees of more than one employer, effectively require
multiemployer bargaining and are therefore impermissi-
ble under the Act. Contrary to my colleagues’ assertion,
compliance with statutory mandates and Board-
established principles does not deprive employees of
their representational rights. Rather, it simply ensures
that they would be represented in appropriate units in
accordance with the statute.
Congress recognized that a workable framework for
stable collective-bargaining relationships requires that
the represented parties—employees and employers—
have common, if sometimes conflicting, interests. In
order to ensure that bargaining takes place on the basis of
such common interests, Section 9(b) of the Act pre-
scribes that collective-bargaining units must be “appro-
priate,” i.e., the unit must conform to certain statutory
standards and the employees must share a community of
interest. For the same reason, the Act precludes the
Board from defining units so as to require employers of
separate employee groups to bargain jointly and allows
for joint bargaining by employers only when they consti-

Since the hearings in these cases, the General Counsel has amended the
Casehandling Manual (Part II) (Representation Proceedings) Sec.
11008.1(c), to require notification as interested parties “any other em-
ployer which might be a joint employer (for example, a contractor, an
employment service, or a supplier of leased or temporary employees) or
the operator of a leased department in a case involving a retail store
where there are leased departments.”
tute joint employers of the same unit of employees or
when they voluntarily enter into a more inclusive bar-
gaining relationship. In the interest of facilitating union
organizing in the modern workplace, however, today’s
decision sacrifices this fundamental statutory principle of
commonality of interest by forcing employers of differ-
ent employee groups to bargain together despite their
differing and often conflicting interests with respect to
the bargaining unit employees.
We have two cases before us. In Jeffboat, the union
seeks to accrete to an existing collective-bargaining unit
a separate workforce recruited and paid by a temporary
agency. In accordance with the terms of the contract
between Jeffboat and the agency, those workers must be
recruited at least 150 miles away from the worksite. The
agency pays the employees, inter alia, $50 per diem.1
Jeffboat argues that the temporary employees should not
be added to the unit because the employers do not con-
sent to multiemployer bargaining and because the tempo-
rary employees lack a community of interest with Jeff-
boat’s permanent employees.
By contrast, M. B. Sturgis involves a union organizing
campaign in which Sturgis, presumably in an attempt to
dilute the union’s strength in the petitioned-for unit, ar-
gues that the temporary workers must be included in the
unit. Unlike in Jeffboat, the union in Sturgis opposes
inclusion of the temporary workers on the grounds that
they are short-term employees and because they are
jointly employed by both Sturgis and another employer.
Greenhoot and its progeny have been relied on for the
principle that jointly employed employees may not be
included in a bargaining unit with the employees of one
of the joint employers, without the consent of the em-
ployers. Using the present two cases, the majority seeks
to address a wide range of arrangements involving tem-
porary employment agencies, contract staffing compa-
nies, and outsourcing. However, the facts of these cases,
which present one basic scenario of temporary workers
working side-by-side with the user employer’s employ-
ees at that employer’s facility, are hardly representative
of the myriad possible combinations. Nevertheless, the
majority attempts to fashion a broad rule to encompass
the wide range of situations in which the employees of
two or more employers work together and the employers
share control over the working conditions of at least
some of the employees. The result of this endeavor is
both bad law and bad policy.
Although the laudable goal of the majority is to elimi-
nate the “possibility that thousands of employees suffer
the effective loss of representation rights guaranteed by
the Act,” the facts of the present cases contradict this
claim. In Sturgis, the union opposes the inclusion of the
1 The contract covering the unit into which the Union seeks to ac-
crete these employees provides for hourly pay but no per diem.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
temporary workers, and in Jeffboat the union seeks the
inclusion of the temporary workers without a vote.
In justifying its abrupt departure from the longstanding
requirement of consent to multiemployer bargaining in
these cases, the majority attempts to argue that bargain-
ing by an employer with respect to its own employees,
and by the same employer together with a joint employer
with respect to jointly employed employees, is not “true”
multiemployer bargaining. Having thus used a verbal
formulation to slight the critical importance of employer-
based bargaining units under the statutory scheme, the
majority ignores statutory mandates and determines that
the appropriateness of these units should be considered
through the Board’s community of interest analysis. The
majority, however, again overlooks that such an assess-
ment, designed to determine appropriate units among the
employees of the same employer, assumes the matters
here at issue, i.e., that community among employee be-
gins with the key fact that they are employed by the same
employer.
Moreover, the majority contemplates bargaining in
which the sole employer as well as each employer in the
joint employer relationship will bargain concerning the
employees and the subjects under its control. Such
neatly parsed negotiations, however, are unlikely to ma-
terialize. In a more realistic scenario, this forced mul-
tiemployer bargaining would produce controversy and
confusion as the employers strive to protect their differ-
ing interests even as they negotiate jointly with the un-
ion. The error of the notion that each employer would
negotiate concerning the subjects it controls is particu-
larly highlighted in the accretion context of Jeffboat, in
which the supplier employer, which hires and pays its
employees, would at a minimum be initially bound by a
collective-bargaining agreement that was negotiated
solely by Jeffboat for Jeffboat’s employees. Forcing an
employer to abide by a contract that it did not negotiate
flatly contradicts the Supreme Court’s holding in H. K.
Porter Co. v. NLRB2 that the Board lacks the authority to
compel an employer to accept even a single contractual
provision.
Thus, the majority’s decision today runs counter to the
statute, sound labor policy, and the reality of collective
bargaining.
I. FACTS
A. Sturgis
The facts of these cases are relatively straightforward.
Sturgis operates a hose assembly business in Maryland
Heights, Missouri, where it employs 34–35 full-time
production or assembly employees. At any given time,
Sturgis also has approximately 10–15 additional employ-
ees working on a temporary basis through an arrange-

2 397 U.S. 99 (1970).
ment with Interim, Inc., a temporary employment
agency.
The Regional Director found that Interim controls
many of the essential terms and conditions of the tempo-
rary employees whom it places at Sturgis. Interim is
responsible for interviewing and hiring these employees.
Interim determines their pay and benefits, and the em-
ployees receive their pay directly from Interim. In fact,
Sturgis’ senior production manager, Stan Wolfman, did
not know the wage rates of the temporary employees, but
only the flat hourly rate that Sturgis pays Interim for their
services. The wages and benefits provided by Sturgis to
its own employees differ from those offered by Interim
to the temporary employees.
In addition, Interim decides which employees to assign
to work at the Sturgis facility each day. In the 7 months
between March 1995 and the issuance of the Regional
Director’s Decision and Direction of Election, Interim
placed approximately 50 different employees in the 10-
15 temporary positions at Sturgis.
After the temporary employees arrive for work at
Sturgis, Sturgis determines their duties and controls
many of the conditions under which they perform those
duties. These employees thus work alongside Sturgis’
own employees and are supervised by Sturgis’ supervi-
sors. They perform their duties in the same work area,
make the same products, and record their time for each
project in the same manner as Sturgis’ own employees.
Full-time and temporary employees take their breaks in
the same place and at the same time. They also work the
same hours, although the temporary employees may not
work over 40 hours per week. Sturgis reports to Interim
the hours worked by the temporary employees. Stur-
gis’supervisors have authority to discharge temporary
employees, and have done so, although the record does
not show whether or how such action affects the employ-
ees’ employment with Interim.
Sturgis hires for full-time positions both employees
who have not previously worked at the facility and em-
ployees who have worked on a temporary basis through
Interim. Between March 1995 and the date of the Re-
gional Director’s decision, a period of approximately 8
months, Sturgis hired nine temporary Interim employees
for full-time jobs. Sturgis typically does not hire tempo-
rary employees who have worked at its facility for less
than 90 days, because its contract with Interim requires it
to pay a fee when an employee is hired before that time.
Sturgis contends that the bargaining unit should in-
clude the temporary Interim employees as well as its full-
time employees. Petitioner Textile Processors, Service
Trades, Health Care, Professional & Technical Employ-
ees International Union Local 108 (Local 108), however,
objected, arguing that a unit including these employees
would be inappropriate. Interim did not participate in the
hearing, so the record did not demonstrate any consent
by Interim to the inclusion of the temporary employees
M. B. STURGIS, INC. 1311
in a unit with Sturgis’ employees. At oral argument,
however, Interim stated that it did not consent to their
inclusion.
The Regional Director found that “at most” Sturgis
and Interim were the joint employers of the temporary
employees. Relying on Board precedent holding that
employees of different employers may be included in the
same bargaining unit only with the consent of both em-
ployers,3 the Regional Director concluded that the tem-
porary employees must be excluded from the unit.
B. Jeffboat
The Petitioner in Case 9–UC–406, General Drivers,
Warehousemen & Helpers Local 89 (Local 89), currently
represents the production and maintenance employees at
Jeffboat’s shipyard in Jefferson, Indiana. In addition to
the approximately 608 employees included in the unit,
encompassing approximately 31 job classifications, Jeff-
boat filled an additional 30 first-class welder and steelfit-
ter positions at the shipyard through a contract with
TT&O in August 1995. Local 89 seeks to clarify the
existing bargaining unit to include the employees pro-
vided by TT&O through accretion.
The record shows that Jeffboat entered into its contract
with TT&O as a result of its inability to recruit a suffi-
cient number of qualified employees for its production
requirements. Under the terms of the contract, TT&O
must recruit the employees it assigns to Jeffboat from
distances of at least 150 miles from the shipyard, in order
to prevent competition with Jeffboat’s own hiring efforts.
Jeffboat may hire TT&O-assigned employees after they
have worked at least 30 days at the shipyard. The record
does not reveal how many of these employees, if any,
were actually hired.4
The welders and steelfitters assigned to the shipyard
by TT&O possess the same technical skills as Jeffboat’s
employees in the same classifications, and work directly
with those employees on the second and third shifts. A
representative of TT&O is frequently on site at the ship-
yard, but the record does not specify his responsibilities
or his involvement with the employees. The work of the
TT&O employees is assigned and monitored by Jeffboat
supervisors and they are subject to the same rules as
Jeffboat employees.
TT&O pays the employees at the Jeffboat shipyard
$10 per hour plus $50 per diem. They receive no fringe
benefits. In contrast, the 1995–1998 collective-bargain-
ing agreement covering unit employees prescribes hourly
wage rates for first class welders and steelfitters ranging
from $10.95 for the first contract year to $11.70 for the
third year, and benefits such as paid vacation days and

3 The Regional Director cited Hughes Aircraft, 308 NLRB 82
(1992), and International Transfer of Florida, 305 NLRB 150 (1991).
4 Jeffboat began using employees assigned by TT&O about August
14, 1995, and the hearing was conducted less than 2 months later, on
October 11, 1995.
holidays; dental, vision and health insurance; and a pen-
sion plan.
The Acting Regional Director determined that Jeffboat
and TT&O are joint employers of the TT&O. employees
working at the shipyard. Based on Greenhoot and Lee
Hospital, he concluded that, because Jeffboat and TT&O
did not consent to the inclusion of the TT&O employees
in the unit, the unit clarification petition must be dis-
missed.
II. THE TEMPORARY EMPLOYMENT INDUSTRY
The temporary employment arrangements at issue in
these cases, as discussed more fully below, represent just
one of the many ways in which employers obtain addi-
tional workers to meet their needs in providing goods or
services to their customers. Moreover, reliance on the
temporary employment industry to hire and supply these
workers is in turn but a single aspect of the broader busi-
ness trend to outsource by contract many functions that
can be carried out efficiently by other business entities.5
The decisions of businesses to outsource specific func-
tions are driven by a variety of factors.6 Some busi-
nesses, for example, turn to outsourcing in order to focus
on their core functions or to enhance their ability to re-
spond quickly to changing circumstances, while others
see outsourcing as a means of improving performance by
acquiring expertise in new areas. Financial considera-
tions may also motivate employers to outsource, whether
in order to eliminate capital assets required for ancillary
functions, to increase their market penetration through
the provider’s contacts, or to control costs in periods of
market fluctuation. Some decisions are also driven by
employee considerations. An employer might outsource
a noncore function, knowing that it cannot offer the em-
ployees performing the function ongoing training and an
attractive career path, and that both the employer and the
employees benefit from the availability of such long-
term opportunities offered by focused staffing firms.7
Temporary staffing is the second most commonly out-
sourced function, surpassed only by building mainte-
nance and cleaning.8 In a 1996 survey by the American
Management Association (AMA), employers that out-
source human resource functions, including temporary
staffing, most often cited saving time as their purpose,
followed by reducing cost and improving quality.9
In temporary employment arrangements, the supplier
employer serves as a conduit between the labor force and
user employers. Thus, supplier employers act as inter-
mediaries in the labor market, matching user employers
that need additional worker services, and individuals
seeking employment in a variety of occupations and with
5 See Greaver, Strategic Outsourcing, 308 (1999).
6 Id. at 295–296.
7 Id. at 296; see also “Outsourcing Tech Staff Works Well at Some
Firms,” The National Law Journal C6 (2000).
8 Greaver, supra, at 308.
9 Greaver, supra, at 303.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
a variety of needs and expectations regarding schedule,
tenure, and pay. In this respect, supplier employers are
the functional equivalent and thus a market competitor of
hiring halls that similarly match employers and available
employees.10
From the employees’ perspective, temporary employ-
ment through supplier employers can provide significant
benefits. Workers, particularly those new to a job mar-
ket, receive job-related training as well as access to a
wider range of job opportunities and experience. Both
new and experienced workers also enjoy the benefits of
flexible schedules and the availability of employment
without a lengthy job search. In addition, some tempo-
rary employees have the opportunity to obtain permanent
employment with the employers to which they have been
assigned.11
A. Forms and Functions of Temporary Employment
Temporary employment and the supplier employers
involved in that industry take many forms. Although the
two cases at issue in these proceedings share similar fac-
tual characteristics, the majority leaps from this common
scenario to far-reaching conclusions about employer rela-
tionships and appropriate units in the entire temporary
employment industry. In fact, my colleagues make
sweeping determinations not only about units within the
facility of user employers, the question posed here, but
also about units of supplier employer employees, a mat-
ter not raised and thus inappropriate to decide in these
cases.
The two present cases involve a temporary employ-
ment agency providing employees to a user employer,
with the supplier employer responsible for hiring the
employees, setting their pay, paying them, and determin-
ing their place of employment. Each supplier employer
and user employer have an ongoing business relationship
that is reflected in a written document, and each supplier
employer fills a significant number of temporary posi-
tions at the user employer’s facility. The temporary em-
ployees work at the user’s facility, and are directly su-
pervised by the user employer’s supervisors. Although
the record does not specify how long individual employ-
ees remain in the temporary positions, the record in Stur-
gis shows that 50 employees occupied the 10–15 tempo-
rary positions in a 7-month period, indicating an average
tenure of 6–10 weeks.
1. Variety of forms. Contrary to the majority’s appar-
ent assumption that all temporary employment situations
10 See Lips, Temps and the Labor Market, Regulation, spring 1998,
31, 33, 38. To address the related problems of competition with tempo-
rary agencies and representation of temporary workers, Communica-
tions Workers of America (CWA) negotiated a collective-bargaining
agreement with ComStaff Temporary Services that provides for a CWA
Employment Center to match employees with small contractors in the
Cleveland, Ohio area. Shine, Can the NLRB Help Cinderella and Little
Orphan Annie? 47 Lab. L. J. 693, 704–705 (1996).
11 Lips, supra, 34–35.
follow the factual model of the instant cases, current
business arrangements for the supply of temporary or
contingent employees take many diverse forms.12 In
some cases, small employers engage a payroll service
company simply to provide certain personnel and payroll
functions in order to realize economies of scale in payroll
processing, insurance, payroll deductions, recordkeeping,
and check writing. Other employers outsource entire
departments, or tasks that do not constitute core func-
tions, to a contractor. The contractor then provides man-
agement, employees, and sometimes equipment, to per-
form the work either at the user employer’s facilities or
offsite. Some common examples of outsourcing involve
warehousing, reproduction, and delivery functions.13
2. Temporary agencies. In other arrangements, a
temporary agency provides employees to fill in when
positions are vacant or employees are absent, or to meet a
temporary need to add shifts or otherwise increase staff-
ing.14 The tenure of these jobs therefore may be short or
long term. A 1997 Bureau of Labor Statistics (BLS)
study showed that the median tenure in a single tempo-
rary assignment was 5 months, and the median employee
tenure with a temporary agency overall was 6 months.15
Temporary agency employees are most commonly en-
gaged in clerical and machine operator occupations, al-
though they also include more highly skilled technical
and professional employees. In these temporary staffing
arrangements, the user employer obtains the benefit of
the supplier employer’s ready access to qualified and
available employees when needed, without incurring the
economic inefficiencies of recruiting new hires or the
risks of terminating them when the temporary need di-
minishes.
3. Temp-to-hire arrangements. Some user employers
also utilize employment agencies or other labor suppliers
on an intermittent or regular basis to recruit temporary
employees who, if they meet performance expectations,
will be hired for permanent employment.16 This “temp-
to-hire” arrangement removes some guesswork from the
hiring process for the employer, and allows unsettled or
first-time workers to gain paid experience in a variety of
jobs, as well as the potential for continued employment.
4. Contract companies. Another type of labor sup-
plier, the contract company, provides employees to other
businesses, for which the employees work continuously
for the contract period. This form of temporary em-
ployment, although less common than temporary agency
employment, increased by 24 percent between 1995 and
12 Irving, Contingent Workers and the NLRA, reprinted in Stein,
Contemporary Issues in Labor and Employment Law, Proceedings of
N.Y.U. 48th Annual National Conference on Labor (1996) at 456.
13 See, e.g., Dial-A-Mattress Operating Corp., 326 NLRB 884
(1998).
14 Lips, supra, at 33.
15 Cohany, Workers in Alternative Employment Arrangements: A
Second Look, reprinted in Daily Labor Report, Jan. 14, 1999, E–1, E–9.
16 Lips, supra, at 35.
M. B. STURGIS, INC. 1313
1997.17 Employees who participate in such an employ-
ment arrangement are more likely than other temporary
workers or employees in traditional work settings to be
experienced workers and in professional, technical, ser-
vice, and precision production occupations.18 Contract
company employees may be hired, for example, to per-
form specific jobs such as periodic equipment mainte-
nance or installation of software or machinery. The 1997
BLS study found that about 40 percent of contract com-
pany employees had worked for their companies for 1
year or less, and that 30 percent had held their positions
for 4 years or more.19 Contract company employees, as a
group, enjoy higher median pay than workers in any
other temporary arrangement, or in traditional work set-
tings, and approximately 70 percent of these employees
are also eligible for employer-provided benefits.20
B. Role of Supplier Employers
In order to succeed in the business market, all supplier
employers must attract and provide value both to user
employers and to the individual employees who partici-
pate in the various arrangements. The growth of the
temporary employment industry demonstrates that they
in fact provide such value.
Temporary agencies and contract companies clearly
provide advantages to user employers, as previously
noted, by relieving them of the expense and administra-
tive demands of hiring new employees, particularly for
staffing needs anticipated to be temporary. In “temp-to-
hire” arrangements, the user employer can select perma-
nent employees from among individuals with whom they
are already familiar, thus reducing costs involved in fill-
ing positions repeatedly when the expectations of either
the employee or the employer are not satisfied. Further-
more, although the actual cost of temporary employees,
including their pay and the agency fee, is often not lower
than that of regular employees, the user employer only
pays for the hours of work actually needed and per-
formed.21
C. Arrangements Between Supplier Employers
and Employees
Contract terms between supplier employers and their
employees vary according to the parties’ needs and ex-
pectations. This variety reflects the characteristics of the
diverse temporary labor sources, and depends in part on
whether the employment or assignment is long-term, on
a daily basis, or from a pool of qualified workers. Vari-
ous arrangements may also reflect the employee’s quali-
fications and training needs, the labor market for that
occupation or locality, and the employee’s desires and
expectations in seeking temporary employment. For

17 Cohany, supra, at E–17.
18 Id.
19 Id.
20 Id. at E–18.
21 Lips, supra, at 33.
example, a temporary agency may hire employees on a
walk-in basis, provide basic instruction on promptness
and other appropriate conduct in the work environment,
and refer them for one or more entry-level positions.
Higher level administrative positions, on the other hand,
may be filled by a temporary agency from an established
pool of experienced workers. Information technology
employees more frequently work full time, receive ongo-
ing training in new technology, and often work over an
extended period of time on projects assigned through
contract companies.22 As in the case of many temporary
agencies, the same supplier employer may have different
arrangements with different employees, offering, for ex-
ample, extensive technical training, health benefits, and
401(k) plans to longer tenure employees.
As a result of such diversity, a supplier employer as-
signing a technical worker from a controlled pool, for
example, would be reluctant to enter into collective-
bargaining agreements setting different terms and condi-
tions of employment for the various individuals they em-
ploy, or to have individual employees’ working condi-
tions, such as pay and benefits, change substantially from
1 week or month to the next, depending on their current
assignment. The employees, likewise, would object to
losing health and benefits coverage provided by the sup-
plier employer and being subject to new waiting periods
when assigned to certain organized user employers.
For a supplier employer that assigns a pool of available
workers to various user employers on an as-needed basis,
for example, the administrative complexity of such an
array of agreements at different user employers would be
staggering, and the potential for error great. The possi-
bility of such disruptive fragmentation would serve as a
powerful incentive for the supplier employer to seek cer-
tain consistent terms in collective-bargaining agreements,
whereas the user employer’s interest might be in keeping
the leased employees’ rates no higher than the permanent
employees’, in order to avoid losing the permanent em-
ployees to the leasing agency. Again, the preliminary
negotiations between the employers could be as critical
and complex as those between the employers and the
union.
Employees participate in temporary employment ar-
rangements for a variety of reasons and derive significant
benefits from them. Temporary employment clearly
provides advantages to first-time job seekers and other
individuals who ultimately desire full-time employment,
by making available paid experience in a variety of
fields, as well as valuable contacts and references in the
selected occupation.23 Approximately 72 percent of
temporary employees move into full-time jobs; many
remain with the user employer.24 The increase in “temp-
22 Cohany, supra, at E–17–18.
23 Lips, supra, at 33, 35.
24 Id. at 35.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
to-hire” employment has likely contributed to this trend.
Temporary employment also offers job opportunities
during swings in the economy. By reducing the time and
cost of a job search, they allow employees to weather
these changes by moving easily among employers as
their services are needed. Moreover, temporary agencies
frequently provide training to their employees, not only
in skills related to particular occupations, but also in the
basic life skills and behavior required for success in any
type of employment. By increasing the employees’
value to user employers, the temporary agency can en-
hance its own charges as well as the pay of its employ-
ees.
Finally, supplier employers are frequently able to pro-
vide employees greater opportunities for job progression.
For example, small employers cannot provide a small
cadre of information technology employees the career
advancement through training and increased pay that
these employees would receive working for a contract
company that employs a large number of such employ-
ees. In these circumstances, employment with a labor
supplier affords employees the benefits and incentives of
career growth, and provides the user employer the advan-
tages of a well-trained and motivated information tech-
nology staff.25
As the number of supplier employers grows, each such
employer must compete more aggressively to attract em-
ployees. Competition for temporary employees, among
both suppliers and users, requires increasingly attractive
arrangements for employees. Thus, agencies frequently
offer pay, job opportunities, benefits and other advan-
tages that would not be available if the employees inde-
pendently obtained a succession of temporary positions
with different user employers.
D. Contracts Between Supplier and User Employers
The diverse contractual relationships between supplier
employers and user employers undermine the majority’s
rather limited view of bargaining in temporary joint em-
ployment arrangements. The contractual relationship, for
example, may or may not be exclusive. Not only do
supplier employers often furnish employees to many user
employers, but some user employers also obtain employ-
ees from a number of suppliers. According to the AMA
survey, 58.2 percent of companies that outsource their
temporary staffing function use multiple suppliers.26
Each of these suppliers would likely have different prac-
tices, pay rates, and benefits. Therefore, the combined
bargaining envisioned by the majority may involve not
simply two employers, but several, each with distinct
starting points and competing interests. In such cases,
each employer would be required to negotiate with the
other employers in order to achieve some degree of coor-
dination and cohesion in dealing with the union.

25 The National Law Journal, supra, at C6.
26 Id.
Other contractual matters, such as the duration of the
relationship between the supplier and the user and the
agreed-upon dispute resolution processes, might also
affect the employment of the temporary employees, or
even the permanent employees in the unit. The AMA
survey found that contracts are typically short-term; 58
percent of employers reported that 1-year contracts were
the norm, and only 20 percent reported a standard dura-
tion of 3 or more years.27 Moreover, a survey by Dun &
Bradstreet revealed that 20–25 percent of all outsourcing
relationships fail in any 2-year period, and 50 percent fail
within 5 years.28 The short duration of contracts and
frequent turnover of supplier employers raise additional
complex issues, including the current joint employers’
obligation to bargain concerning a change in supplier
employers and a new supplier employer’s position with
respect to the existing collective-bargaining agreement,
which it did not negotiate. These problems weigh
strongly against the inclusion of the temporary employ-
ees in the bargaining unit of the user employer’s employ-
ees.
Also significant is the agreed-upon basis of payment to
the supplier employer, whether a lump sum, a fixed
hourly rate, or cost plus a fixed fee. Under a lump-sum
contract or one that specifies a fixed hourly rate, the sup-
plier employer must absorb any increase in costs for
wages and benefits resulting from collective bargaining.
Under a cost-plus contract, on the other hand, the user
employer bears the risk of such additional costs. More-
over, a single user employer might enter into different
types of contracts with different suppliers. In any case,
this allocation of risks can determine the relative bargain-
ing position of each employer, even as to the terms and
conditions that it nominally controls. A supplier em-
ployer that sets the pay of its employees, for example,
would be guided by its internal financial considerations
in collective bargaining about pay for temporary em-
ployees working under a fixed fee contract. For employ-
ees working under a cost-plus contract, on the other
hand, the supplier, though not financially liable for the
increase, would be constrained by contractual limitations
and concerned about its prospects for retaining the con-
tract if it agreed to an increase. In both cases, the sup-
plier employer must consider the effect on other employ-
ees performing similar work for its other user employers
and the nature of those contracts.
The present cases thus represent merely one limited
scenario in the diverse and complex landscape of tempo-
rary employment arrangements described above. For this
reason, the Board should limit its holding in this proceed-
ing to the specific factual and legal issues posed, reserv-
27 Id.
28 “Dun & Bradstreet Survey Finds 50 Percent of Outsourcing Rela-
tionships Worldwide Fail Within Five Years; Principal Cause is Poor
Planning for New and Evolving Business Process,” Business Wire
(2000).
M. B. STURGIS, INC. 1315
ing judgment concerning different circumstances until
they are directly presented in future cases.
III. LEGAL FRAMEWORK
The General Counsel, through these cases, calls upon
the Board to reexamine the appropriateness of a unit that
includes the employees of one employer as well as em-
ployees who are jointly employed by that and another
employer, without the consent of the employers. The
majority response, finding that the commonality of one
employer is sufficient to overcome the restrictions on
multiemployer bargaining and to support a community of
interest finding, may appear pragmatic from the perspec-
tives of administrative convenience and ease of union
organizing.29 In reaching this result, however, the major-
ity glosses over statutory safeguards and Board tenets
that have long served to protect both employees and em-
ployers in the structuring of bargaining units.30 The ma-
jority’s approach, built on a precarious legal foundation
and faulty premises of labor policy and practice, fails to
provide a viable solution to bargaining unit questions
involving jointly and solely employed employees. Even
worse, the majority creates opportunities for both unions
and employers to manipulate unit determinations in rep-
resentation proceedings.
A. Statutory Language and Legislative History
Section 9(b) of the Act states in relevant part:
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.
Section 9(b) thus affords the Board substantial discretion in
determining the appropriateness of bargaining units on a
case-by-case basis. That section, however, also limits the
Board’s discretion in unit determinations, i.e., “whether the
unit appropriate for collective bargaining shall be the em-
ployer unit, craft unit, plant unit, or subdivision thereof.”
The discretion granted to the Board by Section 9(b)31 must
therefore be exercised only within the framework provided
by the statute.32

29 Union leaders, however, view organizing temporary workers as an
important aspect of their agenda for the future. See Hiatt and Jackson,
supra, at 172.
30 Ease of union organizing, moreover, has never been recognized as
a Congressional purpose underlying the Act. In fact, Sec. 9(c)(5) of the
Act expressly prohibits the Board from considering the extent of union
organizing in determining appropriate units for collective bargaining.
See NLRB v. Lundy Packing Co., 68 F.3d 1577 (4th Cir. 1995), cert.
denied 518 U.S. 1019 (1996).
31 South Prairie Construction Co. v. Operating Engineers Local 627,
425 U.S. 800 (1976).
32 See Lundy Packing, supra (Board erred in establishing standard
for unit determination that was inconsistent with statutory prohibition
against relying on extent of organization).
The express language of Section 9(b) makes clear that
appropriate units are to be drawn along the prescribed
groupings of employees or subdivisions, not combina-
tions, thereof. The majority concedes that units broader
than employer-wide are not contemplated by this sec-
tion.33 By verbal sleight of hand, however, the major-
ity’s unit determinations in these cases combine employ-
ees of a sole employer and joint employers to form a
unit, abuse the discretion afforded to the Board by the
Act, and guarantee uncertainty and frustration in the
collective-bargaining process. The majority substitutes
its own assessment of what is pragmatic in today’s work-
place for the clear statement of Congressional intent ex-
pressed in Section 9(b).
Furthermore, nothing in the legislative history suggests
that Congress intended or authorized the Board to estab-
lish units broader than the employees of a particular em-
ployer, as provided in Section 9(b).34 In fact, in delibera-
tions concerning the Taft-Hartley Act, Congress specifi-
cally considered whether the term “employer” for pur-
poses of Section 9(b) should include employer associa-
tions. Senate amendments expressly excluded “a group
of employers except where such employers have volun-
tarily associated themselves for the purpose of collective
bargaining.”35 The conference agreement, however,
found this provision unnecessary because it merely re-
stated existing Board practice, “and it is not thought that
the Board will or ought to change its practice in this re-
spect.”36 Nor is there any hint that Congress contem-
plated that a plantwide unit may include employees of
more than one employer. Rather, the provision for plant-
wide units is consistent with the Board’s well-established
presumption that, where an employer maintains more
than one facility, single-location units will be found ap-
propriate.37
B. Joint Employers
A notable but narrow variation of the general model of
bargaining between one employer and the union repre-
senting its employees applies when the employing entity
of a particular group of employees is a combination of
employers, referred to as joint employers. The Board
and courts find joint employer status when separate em-
33 See also Hiatt and Jackson, Union Survival Strategies for the
Twenty-First Century, 12 The Labor Lawyer 165, 172 (1996) (“the
NLRA presupposes stable employment relationships. Organizing
within the NLRA model takes place among employees of an employer
working within a defined bargaining unit.”)
34 The phrase “or subdivision thereof” in Sec. 9(b) was selected to
enable the Board to order an election “in a unit not as broad as ‘em-
ployer unit,’ yet not necessarily coincident with the phrases ‘craft unit’
or ‘plant unit’; for example, the ‘production and maintenance employ-
ees’ of a given plant.” H.R. Statement on Conf. Rep. S. 1958, 79 Cong.
Rec. 10297, 10299 (1935), reprinted in 2 Leg. Hist. 3260, 3263 (NLRA
1935).
35 H.R. 3020, reprinted in 2 Leg. Hist. 229–230 (LMRA 1947).
36 House Conf. Rep. No. 510 on H.R. 3020, 2 Leg. Hist. 535-536
(LMRA 1947).
37 Kendall Co., 184 NLRB 847 (1970).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
ployers “share or codetermine those matters governing
essential terms and conditions of employment.”38 The
joint employers, taken together, are regarded in Board
law as the statutory employer of the jointly employed
employees. The Board, however, has not previously
espoused the view, inescapable in the majority rationale
in the present cases, that joint employers are legally in-
distinguishable from either of the component employers.
Such an approach is misguided and contrary to logic.
C. Multiemployer Bargaining
Joint employers, in which two or more employers co-
determine the terms and conditions of employment of a
single group of employees, are very different from mul-
tiemployer bargaining, in which two or more employers
group together for bargaining with the union representing
their respective employees. The legislative history of the
Taft-Hartley Act amply demonstrates that Congress seri-
ously debated the benefits and dangers of nonconsensual
multiemployer and industrywide bargaining, and whether
the Board should have the authority to certify multiem-
ployer units.39 A conference committee, considering
early in the legislative process a House bill, H.R. 3020,
which flatly prohibited such bargaining and a Senate bill,
S. 1126, which prohibited it unless it was undertaken
voluntarily, elected to follow the more moderate Senate
approach.40 As noted above, the conference committee,
in reconciling later versions of the legislation, approved
the Board’s practice of permitting only voluntary mul-
tiemployer bargaining units, and therefore found it un-
necessary to include amendments proposed by the Senate
reflecting that practice.41
Consistent with the Congressional determination that
multiemployer bargaining must be strictly voluntary,
Congress added Section 8(b)(4) of the Act,42 prohibiting

38 NLRB v. Greyhound Corp., 368 F.2d 778, 780 (5th Cir. 1966), on
remand from Boire v. Greyhound Corp., 376 U.S. 473 (1964); NLRB v.
Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117, 1123
(1982).
39 See discussion of legislative history in Mobile Mechanical Con-
tractors Assn. v. Carlough, 664 F.2d 481, 485 (5th Cir. 1981), cert.
denied 456 U.S. 975 (1982).
40 Id.
41 See fn. 36, supra.
42 Sec. 8(b)(4) provides, in relevant part, that it is an unfair labor
practice for a labor organization
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an indus-
try affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in either case an
object thereof is—
(A) forcing or requiring any employer or self-employed per-
son to join any labor or employer organization or to enter into
any agreement which is prohibited by section 8(e);
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease do-
unions from engaging in strikes or threats with an object
of “forcing or requiring any employer or self-employed
person to join any labor or employer organization.” That
provision also prohibits union attempts to coerce an em-
ployer to act as if it were a member of a multiemployer
group.43
Thus, Congress directed that multiemployer bargaining
represent a voluntary exception to the normal model of
one employer bargaining with the representative of an
appropriate unit of its employees. This limited excep-
tion, moreover, applies only under a highly restrictive set
of conditions designed to ensure that the Congressional
requirement of voluntariness is satisfied, and the Board
and courts have accordingly applied a stringent test in
determining whether multiemployer bargaining has been
established.
The test is whether the employer members have indi-
cated from the outset an unequivocal intention to be
bound by group action in collective bargaining, and
whether the union, being informed of the delegation of
bargaining authority to the group, has assented and en-
tered into negotiations with the group representative.44
It is clear, therefore, that the consent of an employer or
union to multiemployer bargaining will not be inferred.
Consent, for example, will not arise from the employer’s
membership in an employer association. Rock Springs
Retail Merchants Assn., 188 NLRB 261 (1971). Even an
agreement to engage in multiemployer bargaining is in-
sufficient; actual bargaining must occur before the em-
ployer is bound. NLRB v. 1115 Nursing Home & Service
Employees, 44 F.3d 136, 138 (2d Cir. 1995), enfg. 312
NLRB 409 (1993).
Thus, an obligation to engage in multiemployer bar-
gaining arises only from an employer’s history of actu-
ally doing so. Even then, a brief or equivocal history of
multiemployer bargaining does not demonstrate the nec-
essary agreement to bargain on that basis. Id. at 138-
139. The Board does not, and under the statute may not,
impose such an obligation through its appropriate unit
determinations.
Under the same compelling statutory principle of one-
employer bargaining that only permits multiemployer
bargaining on a voluntary basis, a party may unilaterally
revoke its election to engage in multiemployer bargain-
ing. The Supreme Court has approved the policy, set out
by the Board in Retail Associates, 120 NLRB 388

ing business with any other person, or forcing or requiring any
other employer to recognize or bargain with a labor organiza-
tion as the representative of his employees unless such labor
organization has been certified as the representative of such
employees under the provisions of section 9; Provided, That
nothing in this clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary
picketing.
43 Mechanical Contractors Assn., supra, at 483.
44 NLRB v. Beckham, Inc., 564 F.2d 190, 192 (5th Cir. 1977).
M. B. STURGIS, INC. 1317
(1958), that any party is permitted to withdraw from mul-
tiemployer bargaining before the date set for negotiation
of a new collective-bargaining agreement or the date on
which negotiations begin, as long as adequate notice is
provided. Bonanno Linen Service v. NLRB, 454 U.S.
404, 410–411 (1982).
D. Community of Interest
When approaching its task of defining that “appropri-
ate unit” in which an election or collective bargaining is
to take place, the Board has limited its certification to
that “employer unit, craft unit, plant unit, or subdivision
thereof” in which employees share a “community of in-
terest.” The basic requirement is that collective bargain-
ing must take place only with respect to a grouping of
employees in which bargaining will be effective and pro-
tective of those employees’ interests.
A cohesive unit—one relatively free of conflicts of in-
terest—serves the Act’s purpose of effective collective
bargaining . . . and prevents a minority interest group
from being submerged in an overly large unit.45
In making this determination the Board has developed a
series of presumptions, such as the presumption that a single
employer location is appropriate.46
In specific situations, the Board considers a number of
factors in determining whether a community of interest
exists among the employees sought to be represented.
[A] difference in method of wages or compensation;
different hours of work; different employment benefits;
separate supervision; the degree of dissimilar qualifica-
tions, training, and skills; differences in job functions
and amount of working time spent away from the em-
ployment or plant situs[;] the infrequency or lack of
contact with other employees; lack of integration with
the work functions of other employees or interchange
with them; and the history of bargaining.47
Significantly, the reported cases listing or applying commu-
nity of interest factors do not list the identity of the em-
ployer as a factor to consider, because the common em-
ployer is a precondition to beginning the community of in-
terest analysis.48
Where an accretion to an existing bargaining unit is
sought, as in Jeffboat, an even more stringent community

45 NLRB v. Action Automotive, Inc,. 469 U.S. 490, 494 (1985), citing
Pittsburgh Plate Glass v. NLRB, 313 U.S. 146, 165 (1941), and Chemi-
cal Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 172–173 (1971).
46 Frisch’s Big Boy III-Mar, 147 NLRB 551 (1964).
47 Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962).
48 In multiemployer bargaining, the voluntary action of the parties
makes it unnecessary for the Board to determine whether the unit is
appropriate through a community of interest analysis. In the same way,
employers and unions may agree to include supervisors or guards in
bargaining units and negotiate with respect to them, even though these
individuals are not employees under the Act and the Board is precluded
from ordering an employer to bargain regarding them in the first in-
stance. See, e.g., Sakrete of Northern California v. NLRB, 332 F.2d
902, 908 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965).
of interest standard is applied, because the accreted em-
ployees are denied the opportunity to select their bargain-
ing representative through an election. The accretion
standard thus requires that the employees to be accreted
share an overwhelming community of interest with those
in the existing unit and have little or no separate group
identity, such that they could not constitute a separate
appropriate unit. Compact Video Services, 284 NLRB
117, 119 (1987).
IV. GREENHOOT AND LEE HOSPITAL
The Board properly applied the above legal framework
in making appropriate unit determinations in Greenhoot
and Lee Hospital.49
In Greenhoot, the petitioner sought a unit of the em-
ployees of a property management company. These em-
ployees worked in 14 office buildings managed by the
employer. The employer contended that the respective
building owners were the employers of the employees or,
alternatively, that the management company and the
building owners were joint employers of the employees
at each location. The Board found that both the building
owner and the management company possessed signifi-
cant employer functions and were joint employers of the
employees working in each building. The Board con-
cluded,

In this circumstance, there is no legal basis for
establishing a multiemployer unit absent a showing
that the several employers have expressly conferred
on a joint bargaining agent the power to bind them in
negotiations or that they have by an established
course of conduct unequivocally manifested a desire
to be bound in future collective bargaining by group
rather than individual action.50

Finding no consent by the employers, the Board remanded
the case for elections in separate units for each building.
In Lee Hospital,51 the Board considered the issues of
joint employers and multiemployer bargaining in a con-
text comparable to the present cases. The union filed a
petition to represent a separate unit of certified registered
nurse anesthetists (CRNAs) at the hospital. The Re-
gional Director applied the Board’s “disparity of inter-
ests” standard for determining appropriate units in health
49 My colleagues in the majority rely on several pre-Greenhoot cases
in which the Board found appropriate, on community of interest
grounds, units including both employees jointly employed by a depart-
ment store and a concessionaire operating a particular department in the
store, and employees solely employed by the department store or
jointly employed by the store and other concessionaires. In none of
these cases, however, did the parties raise the issue of consent to mul-
tiemployer bargaining. Unlike my colleagues, I do not infer from these
cases that, if the issue had been raised, the units would still have been
found appropriate.
50 Greenhoot, 205 NLRB at 251.
51 300 NLRB 947 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
care institutions,52 and concluded that the CRNAs did not
demonstrate such sharp differences from other hospital
employees to warrant representation in a separate unit.
In dismissing the petition, the Regional Director found it
unnecessary to consider the petitioner’s argument that
disparity of interests was also supported by the CRNAs’
joint employment by the hospital and Anesthesiology
Associates, Inc. (AAI), which contracted with the hospi-
tal to operate the anesthesia department and the recovery
room.
The Board, however, found the joint employer issue
critical in view of the policy against establishing mul-
tiemployer units without the employers’ consent.53 In
accordance with this policy, if the CRNAs were jointly
employed, the Board would not find appropriate their
inclusion in a unit of professionals solely employed by
the hospital.54 Thus, the Board recognized that, in the
absence of consent, commonality of employer is a pre-
condition of unit appropriateness that cannot be overrid-
den by commonality of interests in other regards. The
Board ultimately concluded, however, that AAI did not
control essential terms and conditions of employment so
as to render it a joint employer, and therefore affirmed
the Regional Director’s determination.
V. DISCUSSION
The facts in the present cases do not differ signifi-
cantly from those considered in Lee Hospital. Unfortu-
nately, the majority here, by overruling Lee Hospital and
reinterpreting Greenhoot, declines to follow the funda-
mental legal and statutory principles underlying those
cases. Thus, in one stroke the majority disrupts the set-
tled principles discussed above regarding joint employ-
ers, multiemployer bargaining, and appropriate units, and
throws a settled area into turmoil. The majority also fails
to acknowledge the conflicting interests between supplier
and user employers, who have a buyer-seller relationship
with one another, as well as being, in some cases, joint
employers of the temporary employees. Finally, in at-
tempting to devise a simplistic formula for cases involv-
ing temporary employment arrangements, the majority
overlooks both the diversity of such arrangements and
the limitations normally observed in resolving issues
through case adjudication. Accordingly, the majority
approach fails as a matter of both law and policy.

52 Id. at 947–948; St. Francis Hospital, 271 NLRB 948 (1984), re-
manded 814 F.2d 697 (D.C. Cir. 1987), on remand 286 NLRB 1305
(1987). Under the disparity of interests test, a separate unit of health
care employees was not found appropriate unless there were sharper
than normal differences in terms of the normal community of interest
factors between the employees in the smaller proposed unit and those in
the overall unit. This test was superseded by the 1989 rulemaking
prescribing appropriate units in the health care industry. See 54 Fed.
Reg. 16336–16348 (1989) (codified at 29 C.F.R. § 103.30).
53 Thus, the Board did not consider community of interest factors.
54 Lee Hospital, supra, at 948.
A. Multiemployer Bargaining
1. Different employers. The majority begins with the
Board’s historic presumption that all of an employer’s
employees constitute an appropriate unit, and attempts to
move to the fallacious corollary that a unit of solely and
jointly employed employees is also appropriate. Such a
conclusion leaves out of the analysis an essential fac-
tor—the existence of one or more joint employers of
some of the employees. Thus, some of the employees
share joint employers, but those supplier joint employers
are entirely strangers to the rest of the unit employees,
who are solely employed by the user employer. More-
over, the supplier joint employers have interests separate
and distinct from, and often conflicting with, the user
employer. In short, having one employer in common
differs fundamentally from having the same employer,
and saying otherwise does not paper over the contrary
reality.
It is illogical to argue, for example, that Sturgis and In-
terim, as joint employers, are the same together as either
is taken alone. As a result of their separate identities,
one cannot assume that these parties, which are in en-
tirely different lines of business and which have separate
economic interests and demands and face different mar-
ket forces, will bargain together with their jointly em-
ployed employees in precisely the same manner as either
would separately with respect to its own employees.
Indeed, the basis of a joint employer finding, that the
employers determine working conditions together or that
each controls some of the terms and conditions of em-
ployment for the employees, acknowledges that a new
employing entity, different from either component em-
ployer, exists.
Analogies to more traditional multiemployer bargain-
ing situations are unavailing. Typically, these arrange-
ments arise in manufacturing, sports, and construction.
Such employers are usually competitors, and the effect of
joint or industry-wide bargaining is to establish uniform
labor rates and practices among the companies and, in
effect, remove labor costs from competition, forcing the
competitors to focus on other competitive factors, such
as internal efficiency or innovation. In such cases, the
employers’ consent to multiemployer bargaining signals
that each employer has made a determination that its
interests are adequately aligned with those of the other
employers to make group bargaining viable.
2. Statutory requirement of consent. Because the
jointly employed employees and the solely employed
employees have different employers, it follows that the
Board’s placement of both groups in the same bargaining
unit requires multiemployer bargaining without the con-
sent of the parties, an outcome clearly repugnant to Con-
gressional intent and over 50 years of precedent. More-
over, my colleagues in the majority offer no explanation
for this reversal of course. Instead, they purport to leave
intact the rules concerning multiemployer bargaining by
M. B. STURGIS, INC. 1319
simply declaring that where, as here, the employees share
one common employer, the user employer, “true mul-
tiemployer bargaining” is not involved. My colleagues
essentially rationalize that bargaining by joint employers
in this combination is not multiemployer bargaining.
This assertion, however, distorts the nature and limita-
tions of a joint employer relationship. Because joint em-
ployers share or codetermine terms and conditions of
employment, both must participate in bargaining in order
to negotiate concerning the full complement of sub-
jects.55 Requiring that the joint employers engage in
bargaining with another employer, be it one of the parties
to the joint employer relationship or an outsider, without
their consent, is coerced multiemployer bargaining,
which is beyond the Board’s statutory authority.56
The arbitrariness of the majority’s approach is high-
lighted by its conflicting treatment of units including
employees of both supplier and user employers based on
whether the common employer is the supplier or the user.
The majority finds that when the user employer is the
common employer, the jointly employed employees of
the user and one or more suppliers may be included in
the unit, and all of the joint employers may be required to
bargain without consent. When the supplier is the com-
mon employer, on the other hand, and the union seeks to
bargain with the joint employers, i.e., the common sup-
plier and one or more users, the majority would not find
the unit appropriate. Thus, the majority agrees that, in
this situation, the various joint employers could not be
required to participate in what it concedes to be mul-
tiemployer bargaining. Neither the statutory language
nor the legislative history of Section 9(b) provides any
hint that Congress contemplated distinctions among
types of employers for the purpose of applying the Act’s
protection against coerced multiemployer bargaining.
Rather, the majority’s concession that units including a
common supplier and one or more users involve mul-
tiemployer bargaining provides the best illustration that
the converse is also true.
As a creature of statute, the Board must apply the con-
sent requirements of Section 9(b) and Section 8(b)(4)(A)
in all cases, until Congress elects to modify the current

55 The Board created a narrow exception to this rule in Management
Training, 317 NLRB 1355 (1995), for circumstances in which only one
joint employer is a statutory employer and the other is a governmental
entity not subject to the Act.
56 The business relationship that gives rise to joint employer status as
to certain employees does not entail consent by the employers to en-
gage in multiemployer bargaining. It is well established that such
consent may never be inferred, but must be unequivocally demonstrated
by actual participation in bargaining. 1115 Nursing Home & Service
Employees, supra, 44 F.3d at 138. Moreover, there is no factual basis
in these cases for finding consent. The employers before us consented
only to do business on a limited basis and for a specific purpose, with
the supplier employers providing labor to the user employers in accor-
dance with a contract. In entering into the contract, each employer
apparently determined that its individual business interests would be
furthered by the arrangement.
statutory requirements. The majority approach enlists
the Board as a partner with unions in accomplishing
through a representation petition an object that Section
8(b)(4)(A) expressly prohibits—involuntary multiem-
ployer bargaining. Although the majority characterizes
its action here as a change in Board policy, it is in reality
a revision of clear Congressional policy central to the
Act. As such, it clearly exceeds the scope of the Board’s
authority.
3. Protection of employees’ Section 7 rights. My col-
leagues also assert that their decision to overrule Lee
Hospital safeguards employee rights. The majority,
however, fails to establish that the bargaining units that
could result from their approach promote employee
rights, which in fact they do not, as the examples before
us show. In Sturgis, the employer seeks to have the
jointly employed employees included over the Peti-
tioner’s objection, and in Jeffboat, the Petitioner seeks to
include the jointly employed employees through accre-
tion, without an election to determine their desires.
In contrast, the Board’s decisions in Lee Hospital and
Greenhoot, as they have been applied until today, were
more protective of employee rights, because they upheld
the general principles that employees are entitled to
choose their collective-bargaining representative and to
be represented in a unit of employees of the same em-
ployer and with whom they share a community of inter-
est. In Lee Hospital, because no joint employer relation-
ship was found, normal standards for unit appropriate-
ness among the employees of the same employer were
applied. In Greenhoot, the Board rejected the petitioned-
for unit of employees jointly employed by Greenhoot
and the respective owners of 14 buildings. In the ab-
sence of consent, the Board concluded that separate units
of the employees in each building were appropriate.
B. Community of Interest
Having deemed the bargaining at issue here not to be
“true” multiemployer bargaining and thus dispensed with
the statutory requirement of consent, my colleagues in
the majority adopt the position, urged by the AFL–IO
and the General Counsel in their post-argument briefs,
that the proper method of determining the appropriate-
ness of the units is through a community of interest
analysis. In proposing to apply the community of inter-
est test in these cases, the majority again cavalierly dis-
misses the point that some of the employees in the pro-
posed units have an additional employer that has no em-
ployment relationship with the other unit employees,
who are employed solely by the user employer. The ma-
jority instead finds that a community of interest may ex-
ist based on other factors.
That some of the employees in a proposed unit are
employed by joint employers, i.e., a different employing
entity from the sole employer of the remaining employ-
ees, goes beyond “some differing terms and conditions of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
employment from their colleagues.” In fact, as discussed
previously, it is not a community of interest factor at all.
Having the same employer (not merely one employer in
common, as the majority would have it) is a statutory
condition precedent that must be satisfied before the
Board may consider a possible community of interest.
Adhering to this requirement, moreover, will not thwart
organizing. Groups of employees with the same individ-
ual employer or the same joint employers are entitled to
choose representation by a union, if majority support is
demonstrated in accordance with the Board’s processes.57
Thus, organization is only precluded, and properly so,
when a majority of employees do not support the union.
The community of interest analysis is a creation of
Board policy, devised to apply the Board’s Section 9(b)
mandate within the statutory framework. Thus, the test
must operate within the statutory framework of “the em-
ployer unit, craft unit, plant unit, or subdivision thereof.”58
The majority instead uses the Board-developed policy for
applying the statute as a means of circumventing the stat-
ute, proposing to rely on community of interest to find
bargaining units appropriate even though the employees
do not share the same employer, as Section 9(b) requires.
By presupposing a condition precedent, the majority’s
approach puts the cart before the horse, and the major-
ity’s desired application of the statute before the statute
itself.59
C. Bargaining and Related Problems
Bargaining in a unit that combines solely employed
permanent employees and jointly employed temporary
employees would cause precisely the conflicts of interest
and submerging of minority group concerns that the
community-of-interest test, for employees of an individ-
ual employer, is designed to avoid.60 Thus, from a prac-

57 Ironically, because the Petitioner in Jeffboat seeks to accrete the
TT&O. employees, they will be denied the right to decide whether to be
represented.
58 Sec. 9(b); see Lundy Packing, supra, 68 F.3d at 1581.
59 As a factual matter, the existence of a different employer would
likely have a determinative effect on community of interest, outweigh-
ing other common terms and conditions among these groups. For ex-
ample, if a supplier generally assigns highly skilled employees from a
pool on short-term assignments, the employees would be unlikely to
believe that their interests are closely aligned with those of the perma-
nent employees of the user employer. Similarly, if their tenure with the
supplier employer affords them a 401(k) program, their interests in
maintaining these benefits from the supplier employer would be
thwarted by involuntarily becoming employees in an existing bargain-
ing unit with different programs and waiting periods. The facts in
Sturgis also demonstrate turnover among temporary employees and
suggest the potential effect of short tenure on community of interest. In
that case, 50 employees filled 10–15 temporary positions during a
period of only 7 months. In addition, the accretion context of Jeffboat
requires an overwhelming community of interest, such that the 30
jointly employed employees could not constitute a separate appropriate
unit, because the employees are forced into a bargaining unit regardless
of majority support.
60 See Action Automotive, supra, 469 U.S. 490, 494, and cases cited
therein. In Jeffboat, for example, Local 89 seeks to accrete only 30
tical as well as a legal perspective, the approval of such a
bargaining model contradicts and undermines the
Board’s longstanding policy regarding bargaining units.
For example, in order to accommodate the user em-
ployer’s need for flexibility and the interests of the ma-
jority of the unit, i.e., the solely employed employees, a
union might agree to less favorable wages and benefits
for the minority jointly employed employees. Whether
such a trade-off would occur, or had occurred in a par-
ticular set of negotiations, is subject to speculation.
However, the neatly-parsed bargaining envisioned by the
majority is also highly speculative.
1. Conflicting interests of employees. In practice, the
majority’s bargaining scenario, rather than operating
neatly as they contemplate, would cast in high relief the
divergent interests of the solely and jointly employed
employees. The majority posits that the user employer
would bargain regarding the solely employed employees,
as well as the terms and conditions that it controls con-
cerning the jointly employed employees, and the supplier
employer would bargain regarding remaining terms and
conditions of the jointly employed employees. Such a
fragmented bargaining framework in itself serves as
compelling evidence that the two groups of employees
should instead negotiate separately with their respective
employers in separate bargaining units.
At the inception of bargaining, for example, the jointly
employed employees and their solely employed counter-
parts would likely receive different benefits from their
employers. As has been noted, some supplier employers
offer such benefits as 401(k) plans and health insurance
coverage, particularly to long-term employees. The tem-
porary employees might have a strong interest in main-
taining the continuity of their benefits, especially if a
change would have severe consequences such as the ex-
clusion of pre-existing medical conditions from coverage
by a new insurer or the loss of unvested 401(k) benefits
offered by the supplier employer. In view of the poten-
tial for substantially conflicting interests, only separate
negotiations for the jointly employed and solely em-
ployed employees would ensure a cohesive bargaining
agenda.
2. Conflicting interests of employers. In the major-
ity’s bargaining construct, the interests of employers will
also necessarily conflict. Unlike joint employers that
have explicitly or tacitly agreed to a common undertak-
ing,61 here the employers are buyer and seller, roles that
are complementary in some respects and clearly conflict-
ing in others. Each derives some benefit from the other.
However, only the user employer derives the ultimate
profit from the work of the employees; the supplier is
merely one of many resources utilized in the user’s en-

jointly employed employees into a unit of 608 solely employed em-
ployees.
61 See Greyhound, supra, 368 F.2d 778, 780.
M. B. STURGIS, INC. 1321
terprise. The structure of the relationship between these
employers is voluntary and contractual, and is described
in their agreement, which sets out such terms as duration,
payment, quantities, direction of work, cancellation, and
dispute resolution, among others. Requiring that the em-
ployers also engage in involuntary multiemployer bar-
gaining injects into their relationship duties and limita-
tions beyond those established and allocated in their
agreement, creating severe conflicts in the underlying
business relationship and rendering impossible the pro-
ductive collective bargaining the majority envisions.
The majority’s fragmented approach to negotiations is
also inconsistent with the essence of collective bargain-
ing—that employers and unions make concessions in one
area in exchange for gains in another. This process de-
mands that the employer operate from a position of uni-
fied economic control, or at least, in the case of joint
employers, a common base balanced to reflect the
respective roles of the joint employers. In the majority’s
framework, as is common in multiemployer bargaining,
neither posture is possible.
Rather, coercing combined bargaining by the joint em-
ployers and the sole employer will highlight and exacer-
bate any conflicting interests between these two employ-
ing entities and create new conflicts. The user and sup-
plier employers are engaged in completely different lines
of business, e.g., Sturgis and Jeffboat operate a hose as-
sembly plant and a shipyard, respectively, and the sup-
plier employers provide a service involving the hiring
and placement of workers. Moreover, the supplier and
user employers have a supplier-customer relationship
that can give rise to demands and conflicts not involving
collective bargaining but which can affect that arena.
These employers do not operate from the same context
and thus do not necessarily understand or fully appreciate
the needs and interests of the other in bargaining. Such
problems are further exacerbated by the presence of mul-
tiple suppliers and by divergent employee needs and
concerns. In addition, the dual role played by the user
employer as the sole employer of the majority of the unit
could disrupt the complementary and balanced relation-
ship between the joint employers that is necessary for
effective joint bargaining as to their jointly employed
employees.62 These risks again demonstrate the wisdom
and necessity of the statutory policy requiring consent for
multiemployer bargaining.63

62 Thus, the employers must simultaneously negotiate with one an-
other as well as the union. Although such inter-employer negotiation is
required between joint employers in relation to their jointly employed
employees, it occurs only with consent in all other circumstances, and
then generally where the employers’ interests are parallel with rather
than antagonistic to one another.
63 The cases relied on by the majority do not support their position.
Management Training, supra, is inapposite. In that case, the Board
found that, where one joint employer is an exempt entity under the Act,
collective bargaining between a union and the other joint employer may
be conducted regarding the terms and conditions controlled by the non-
3. Special problems in accretion context. The con-
flicts arising from combining solely and jointly em-
ployed employees in the same unit are further magnified
in the context of accretion, as presented in Jeffboat. In
this context, the accretion of the jointly employed em-
ployees to the unit of solely employed employees could
obligate the supplier employer for a period of years to
comply with an existing collective-bargaining agreement
that it had no hand in negotiating. Contrary to the major-
ity’s assurances that each of the employers would negoti-
ate as to the subjects it controlled, in an accretion setting
the supplier employer would apparently be bound by the
user employer’s previous bargaining commitments. The
majority fails to suggest how an accretion involving not
only new employees but also a new employer could
avoid imposing bargaining obligations on that employer
beyond those required by the Act.
An employer’s bargaining obligation under Section
8(d) of the Act requires only that the employer meet and
bargain in good faith with the union, not that it adopt
wholesale the agreement that the union has negotiated
with another employer. Moreover, the Supreme Court
has held that the Board lacks authority to compel a party
to agree to any contractual provision.64 Thus, the Board
cannot compel even a successor employer, acquiring a
facility with an established bargaining unit and a current
collective-bargaining agreement, to adopt the existing
agreement; the successor employer must only recognize
and bargain with the union.65 Only in the case of alter
egos, in which successive employers are so interrelated
that the identity of the employing entity remains essen-
tially unchanged, is the employer legally bound by the
agreement negotiated by its predecessor.66
Here, Jeffboat’s business arrangement with TT&O
provides no basis for imposing an obligation so antitheti-

exempt joint employer. That case provided for bargaining between one
statutory employer and one group of employees over a necessarily
limited range of terms and conditions of employment. It did not ad-
dress the issue of requiring two statutory employers with conflicting
interests to bargain with their jointly employed as well as other em-
ployees. Thus, it has no bearing on the appropriateness under the Act
of combined units of solely and jointly employed employees. In addi-
tion, as the majority acknowledges, in NLRB v. Western Temporary
Services, 821 F.2d 1258 (7th Cir. 1987), the Greenhoot issue was not
raised, and a due process argument concerning the joint employer find-
ing was deemed waived. Finally, S. S. Kresge Co. v. NLRB, 416 F.2d
1225 (6th Cir. 1969), is distinguishable. In that case, the court found
that Kresge and the licensees that operated some of its departments of
its store could be required to bargain together with their employees
because all of the employers participated in a joint venture in which
they had some commonality in interest. As noted previously, the issue
of consent to multiemployer bargaining was not raised or considered.
Moreover, in Kresge, unlike the present cases, the interests of the vari-
ous employers were closely aligned and together they shared economic
risks associated with their joint enterprise. Rather than an alignment or
sharing of risks, the employers’ interests here conflict because there is
no common undertaking.
64 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
65 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
66 Crawford Door Sales, 226 NLRB 1144 (1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
cal to the basic concept that parties are bound only by
their own agreements. The Board’s accretion policies
implicitly rest on the predicate that the collective-
bargaining agreement was negotiated by the employer of
the employees to be accreted; negotiation by one com-
mon joint employer is an untenable and unlawful substi-
tute. The rules concerning the voluntary nature of mul-
tiemployer bargaining, as applied in Greenhoot and Lee
Hospital, afford employers essential legal protection
against such an inequitable result.67
4. Implications for secondary activity. Of equal im-
portance, the placement of the solely employed and
jointly employed employees in the same bargaining unit
could undermine the Act’s protection against secondary
activity under Section 8(b)(4)(ii)(B).68 As envisioned by
the majority, both groups of employees and the employ-
ers would bargain together, with the sole employer and
the joint employers addressing their respective employ-
ees and, for the joint employers, the subjects of bargain-
ing under their respective control. Operating under such
a model, it is clear that the terms and conditions of em-
ployment negotiated for the two groups of employees
may not be identical. It is also clear that conflicts could
arise in bargaining between the sole employer and its
solely employed employees that are beyond the control
of the supplier as a joint employer of the remaining em-
ployees.
Section 8(b)(4)(ii)(B) protects employers from becom-
ing enmeshed in economic disputes between a union and
another employer. It prohibits a union, inter alia, from
taking action against an employer to force it to cease
doing business with another employer, or to force the
other employer to recognize and bargain with a union not
certified as the representative of that employer’s employ-
ees. This provision was enacted by Congress with two
objectives in mind, “preserving the right of labor organi-
zations to bring pressure to bear on offending employers
in primary labor disputes and . . . shielding unoffending
employers and others from pressures in controversies not
their own.” NLRB v. Denver Bldg. Trades Council, 341
U.S. 675, 692 (1951).
Application of the statutory prohibition against secon-
dary activity depends on precision in identifying the em-
ployer obligated to bargain over, and empowered to rem-
edy disputes concerning, economic issues affecting a
particular group of employees. The model adopted by
the majority, featuring a comprehensive unit but frag-
mented bargaining, could unnecessarily complicate the
identification of the primary employer in disputes by
creating the mistaken impression that a supplier em-
ployer such as a temporary agency is a primary employer
in controversies between the user employer and its solely
67 Notably, the imposition of the Jeffboat contract on TT&O would
result in TT&O’s employees, who must live 150 miles away, losing the
$50 per diem paid by TT&O.
68 See fn. 42, supra.
employed employees. In fact, the agency would have no
role in such conflicts and no authority to resolve them.
Action by a union against the agency in these circum-
stances would be purely secondary because the agency,
rather than being able to settle the dispute through its
own action, could only bring about a resolution by exert-
ing pressure on the user employer. This is, of course, the
classic model of secondary pressure prohibited by the
Act. Thus, the placement of the two groups of employ-
ees in the same unit might deny the supplier employer
the protection guaranteed by Section 8(b)(4)(ii)(B).
The nature of the temporary employment industry also
raises the potential for serious practical and legal issues
regarding the location of union economic activity. Sup-
plier employers such as temporary employment agencies,
in addition to maintaining their own offices, typically
provide employees to many user employers at many loca-
tions. Even disputes directly involving a supplier em-
ployer and its jointly employed employees would require
careful distinctions between lawful primary activity and
impermissible secondary activity drawing unrelated user
employers into the dispute. In the absence of such dis-
tinctions, a dispute could spill over to involve all of the
user employers of the supplier, in clear violation of Sec-
tion 8(b)(4)(ii)(B).69 The complexity of the distinctions,
on the other hand, would force unions to act at their peril
and would discourage employers, both suppliers and us-
ers, from engaging in joint employment relationships.
The complexity and potential for confusion in disputes
directly involving supplier employers merely hint at the
hazards of enmeshing such employers in disputes involv-
ing only the user employer and its own employees. In
such cases, any economic action against the supplier em-
ployer would violate Section 8(b)(4)(ii)(B), regardless of
whether the combined unit misled the union to believe
that the supplier was a primary employer. Representation
of jointly employed and solely employed employees in
separate units would avert these problems, as well as the
serious general issues entailed in the majority’s fractured
bargaining model.
D. Inconsistency with Greenhoot
Furthermore, my colleagues’ rationale for overruling
Lee Hospital contradicts their continued acceptance of
Greenhoot, even under their new interpretation of that
case. Here, the majority finds, for units of a user em-
ployer’s employees, that having one employer in com-
mon is sufficient to overcome the statutory and Board
restrictions on multiemployer bargaining. In Greenhoot,
however, all of the employees were jointly employed, in
part by Greenhoot, the supplier employer. Thus, if the
majority applied the same test that it applies to units of a
user employer’s employees today, that test would be sat-
69 In some instances, more than one supplier employer provides em-
ployees to the same user employer, vastly compounding the possible
scope of unlawful secondary activity.
M. B. STURGIS, INC. 1323
isfied and the unit appropriate, contrary to the holding in
that case.
A simple modification of the facts presented in the in-
stant cases would even more closely mirror the Green-
hoot facts. If the user employers here obtained tempo-
rary employees from more than one unrelated temporary
agency, would the existence of a common employer be
sufficient to compel the two agencies to bargain together,
even though they have no greater business relationship
with one another than the various building owners in
Greenhoot? In another setting, would agencies providing
employees to different locations of an established multi-
location unit, and unaware of one another, also be re-
quired by the Board to bargain together as well as with
the common component of their separate joint employer
relationships? These potential next steps demonstrate
that the majority’s decision here is a long stride in the
wrong direction.
The majority’s clarification of Greenhoot, however,
treats the supplier employer in a joint employer relation-
ship differently from the user employer. For user-
employer units, the majority would determine whether
the solely employed and jointly employed employees
have an employer in common, and, if so, would compel
the sole employer and both joint employers to bargain in
a combined unit. Such bargaining would cover all of the
employees’ terms and conditions of employment, with
the employers and joint-employer components address-
ing the issues under their control. For supplier-employer
units, on the other hand, the majority would permit bar-
gaining by the supplier employer alone in a single unit
and concerning the terms and conditions it controls. The
user employers would not be required to bargain con-
cerning the unit. Thus, as long as the union names only
the supplier employer on the petition, the majority would
disregard the various joint employer relationships that
may exist and find an appropriate unit involving only the
supplier employer.70
The question whether the employees of a supplier em-
ployer may constitute an appropriate unit under the Act
and the Board’s policies is not presented in these cases.

70 The majority relies on Management Training, supra, 315 NLRB
1355, in finding that the supplier employer would be required to bar-
gain regarding only those terms and conditions of employment that it
controls. It is not clear, under this model, whether another union could
petition to represent the same unit as to the other joint employer and
thus bargain about the remaining working conditions of the same em-
ployees. In any event, the majority’s extension of Management Train-
ing to joint employers in cases where both joint employers are covered
by the Act raises serious implications for joint employer law generally
by creating a basis for fragmented bargaining in units of jointly em-
ployed employees.
Therefore, the Board should not reach out, as do my col-
leagues, to resolve it here. In resolving this issue in an
appropriate case, however, the same fundamental princi-
ples pertaining to employers, multiemployer bargaining,
and appropriate units that are contained in and derived
from the statute and Congressional intent, would neces-
sarily apply. Including the entire employing entity,
whether a sole employer or joint employers, in represen-
tation proceedings and bargaining regarding a unit of
employees is essential. Furthermore, the necessity to
include both joint employers, where they exist, must be
unaffected by a particular employer’s side of the joint
employer relationship, much less by the union’s choice
as to the employer that it names on its petition. Clearly,
neither of these facts has any bearing on reality concern-
ing who actually employs the employees.
Similarly, in making unit determinations involving
supplier employers, the Board must adhere to the restric-
tive principles of the Act concerning multiemployer bar-
gaining. There, as here, the Board is obligated to apply
Sections 9(b) and 8(b)(4)(A) to ensure that bargaining
including separate employers is undertaken only with the
express consent of the parties.
CONCLUSION
The majority’s overruling of Lee Hospital and its rein-
terpretation of Greenhoot carry serious negative implica-
tions concerning the ability of employers to manage their
businesses in a dynamic economy. Moreover, the major-
ity’s decision is contrary not simply to the Board policies
that they reject here, but to the express provisions of the
Act, which only Congress is empowered to amend.
Thus, the Board is obligated to adhere to the statutory
requirement of consent to multiemployer bargaining.
The application of the statute and current Board policy
does not deny employees the right to be represented by a
union, if they so choose. Rather, it simply maintains a
manageable framework for structuring bargaining units
in accordance with the statute. Jointly employed em-
ployees would normally constitute a separate appropriate
unit from the solely employed employees of one joint
employer. Maintenance of separate units would greatly
simplify bargaining relationships and avoid the risks of
confusion as to the primary employer in economic dis-
putes. On the other hand, nothing in the Act prevents the
employers and the union from voluntarily negotiating on
a combined, multiemployer basis. The Act properly
leaves this determination to the parties, who can best
judge the feasibility of such an arrangement in their own
circumstances. The Board should not disturb this well-
founded statutory scheme.