NLRB Facilitates Joint Unionization Between Temporary and Permanent Employees

In a win for organized labor, the National Labor Relations Board (“NLRB”) reinstated a union-friendly standard under which both temporary and permanent employees may collectively bargain as a single unit without employer consent. On July 11, 2016, the NLRB’s 3-1 decision in Miller & Anderson, Inc., 364 NLRB No. 39 (2016), made it easier to combine workers who are temporarily employed by a staffing agency’s client company with workers permanently employed by that client company to form a union.

Under the new standard, if a staffing agency and its client company are deemed to be joint employers of the temporary workers, the temporary workers may join forces with the client company’s permanent workers, provided that they satisfy the “community of interest” factors demonstrating that it is appropriate to treat them as a single unit. Some of the factors used to determine whether a proposed unit of workers share a community of interest are whether the employees are subject to the same working conditions, are subject to common supervision, and have similar wages and benefit packages.

The Miller decision is just the latest adjustment to standards that have flip-flopped several times in recent years. Historically, the NLRB found bargaining units that contained both temporary and permanent employees an appropriate unit. However, in 1990 the NLRB issued an unprecedented decision treating such units as multi-employer arrangements and thus requiring employer permission to create such a single unit. In 2000, the NLRB switched positions again in M.B. Sturgis, and concluded that treating such situations as a multi-employer arrangement was inappropriate. Under Sturgis, the client company was required to bargain regarding all terms and conditions of employment for both permanent employees and temporary employees over which it possessed the authority to control. However, in 2004, the NLRB once again changed its tune in Oakwood Care Center by reinstating the employer consent requirement, again extending the multi-employer analysis to this context. For over a decade, employers have been permitted to prevent such bargaining units by refusing to give consent. This most recent decision expressly overrules Oakwood, establishing once again the union-friendly Sturgis standard.

This decision has a significant impact on temporary staffing agencies and their client companies. In formulating strategies for employee relations, temporary staffing agencies and their clients alike should examine the working arrangements of temporary and permanent employees to determine whether a sufficient community of interest exists. If so, these workers can now form a collective bargaining unit without the consent of the employers and, thus, steps might be taken in order to minimize their community of interest.

For more information on how this may affect your business, please contact a member of the Frantz Ward Labor & Employment Practice Group.