MCB Employment Alert: NLRB’s New Ruling Provides That Employer Consent Not Required for Union Representation of Combined Unit Containing Temporary and Permanent Employees

by | Jul 28, 2016 | Medical Malpractice | 0 comments

Earlier this month, the NLRB issued a 3-1 ruling in Miller & Anderson, Inc. and Tradesman Int’l and Sheet Metal Workers Int’l Ass’n, Local Union No. 19 (“Miller”)1 that allows union representation of a single bargaining unit combining temporary workers and permanent employees without the consent of the staffing agency that supplies the temporary workers.

This holding overrules the Board’s 2004 decision in Oakwood Care Center (“Oakwood”)2, which prevented union representation of a single “mixed” unit combining the temporary and permanent workers without consent from all affected employers. The Miller decision effectively reinstates the Board’s 2000 ruling in M.B. Sturgis, Inc. (“Sturgis”)3 that permits union representation of a single unit containing temporary and permanent employees without the staffing agency’s consent so long as the unit employees share a “community of interest.” Whether workers share a “community of interest” requires an analysis of several factors, including the temporary workers’ and permanent employees’ job duties, wages, hours, skills, training, working conditions, and common supervision.

Under the new Miller decision, staffing companies and their corporate clients having a workforce with a community of interest may be required to collaborate respecting union bargaining. This obligation requires “user” employers to bargain over terms and conditions of employment with permanent employees and the “supplier” employer’s employees. It also requires the “supplier” employer to bargain over terms and conditions of employment with its employees supplied to the “user” employer.

In light of the Miller decision, “user” employers and “supplier” employers should review their policies, practices, and workplace arrangements to determine whether a community of interest exists between their temporary and permanent employees. If a community of interest potentially exists, the staffing firm and its client should be aware that the Miller decision may permit the temporary employees to receive the same terms and conditions of employment as the permanent employees within the shared community of interest. This is a complex and fact intensive area of the law and, accordingly, we advise consulting legal counsel to determine how to best proceed.

This article contains highlights of the decision and is not intended to be legal advice.