In Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the National Labor Relations Board ruled that a petitioner seeking to represent a bargaining unit that consisted of (1) an employer's own employees and (2) temporary employees the employer hires from a staffing agency no longer needs to first obtain the consent of the employer and staffing agency.  From a legal standpoint, this decision overrules a case called Oakwood Center, 343 NLRB 659 (2004) and arguably returns Board law to a case called M.B. Sturgis, Inc. 331 NLRB 1298 (2000).  From a practical standpoint, this decision effectively makes it easier for unions to organize a workforce consisting of regular and temporary employees because it removes a major barrier to doing so.

 

In this case, the union sought to represent a bargaining unit consisting of two groups of employees:  (1) sheet metal workers solely employed by Miller & Anderson and (2) sheet metal workers employed by Tradesmen International (Tradesmen) who were assigned to perform services for Miller & Anderson.  It was undisputed that Tradesmen and Miller & Anderson were joint employers for the employees supplied by Tradesmen to Miller & Anderson.   However, Tradesmen did not have an employment relationship with the workers solely employed by Miller & Anderson.  Therefore, when the union sought to organize the regular and temporary employees at Miller & Anderson, neither company consented, and the NLRB's Regional Director dismissed the union's petition.

 

The matter was subsequently brought before the NLRB, which ruled that consent of Miller & Anderson and Tradesmen was not required.  In reaching its decision, the Board reasoned that such a unit does not constitute the type of multi-employer unit for which consent of all employers is legally required.  Rather, in the Board's mind, all the employees are essentially employed by the same employer ? in this case, Miller & Anderson.  In addition, the Board also justified its decision by stating that the "realities of today's workforce" are that many companies have employees from staffing companies working in tandem with the company's regular employees.  Therefore, for petitions seeking to represent regular employees who work alongside temporary employees, the Board will apply the traditional "community of interests" test to determine whether such a proposed unit is appropriate.

 

(If the union wins the representation election and ends up representing the employees at Miller & Anderson, both companies would be subject to collective bargaining requirements.)

 

Finally, the Board also clarified that a petitioner may seek to organize a unit of only temporary employees being supplied to a single employer, or a unit of all temporary employees of a staffing agency.