The National Labor Relations Board has once again delivered a blow to employers by overturning a decision (and standard) that required the consent of a regular employer and the employer of temporary staff to allow both sets of employees to be part of a single unit for the purpose of collective bargaining. Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) The ruling is not all that surprising considering that the standard has flip-flopped when it was changed by the NLRB under President Clinton and changed back under President Bush.
Until 2000, the Board had relied upon Greenhoot, Inc., 205 NLRB 250 (1973), and Lee Hospital, 300 NLRB 947 (1990), for the proposition that employer consent is necessary whenever there is a petition for a unit of jointly employed employees (those employed by the staffing agency and the user employer) and solely employed employees of the user employer. In 2000, the NLRB under President Clinton held that bargaining units combining regular employees of an employer who uses a staffing agency and the employees of the staffing agency being used are permissible under the Act regardless of consent. M.B. Sturgis, 331 NLRB 1298 (2000). In M.B. Sturgis, the NLRB held that outside temporary employees were eligible to vote along with the user employer’s regular employees in a union election and, if the union prevailed, the temporary employees would be included in the same bargaining unit as the regular employees for purposes of collective bargaining.
In 2004, the NLRB under President Bush decided Oakwood Care Center, 343 NLRB 659 (2004), which overturned M.B. Sturgis. The Bush NLRB held that M.B. Sturgis was wrongly decided and that, “Congress has not authorized the Board to direct elections in units encompassing the employees of more than one employer.” Thus, the NLRB in Oakwood Care Center once again confirmed that bargaining units consisting of both jointly employed temporary workers and regular workers of the user employer require the consent of both the staffing agency and the user employers.
It had been the consensus among many who work in the traditional labor relations field that the standard would be again addressed and reversed by the NLRB under President Obama. The ruling in Miller & Anderson, Inc. overrules Oakwood Care Center and returns to the holding of M.B. Sturgis. In Miller & Anderson, Inc., the Board clarified that it would only apply a traditional community of interest factor test in determining whether such combined employees constituted an appropriate unit for purposes of collective bargaining.
Employers who use the services of staffing agencies to supplement and/or complement their existing staff should review their work arrangements and how those temporary employees are managed and integrated into the workforce. It may take some effort, but employers may be able to insulate themselves from attempts to combine their employees with leased employees based on traditional community of interest standards.
 Substantial assistance provided by Ms. Lanique Roberts, a rising 3L at Penn States’s Dickinson School of Law.
Thomas T. Hearn is an attorney in the Labor Relations and Employment Law Department at Obermayer where he concentrates his practice in labor and management relations, employment discrimination and employee contracts. He can be reached at 215.665.3013 or Thomas.Hearn@obermayer.com.