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NLRB: Temporary Staffing Workers Are Now Eligible to Vote in Union Elections


Miller & Anderson, Inc. - NLRB


Facts:  In 2012, Sheet Metal Workers International Association Local 19 filed an election petition.  The union requested a vote on union representation by sheet metal workers at Miller & Anderson, Inc. along with temporary employees working on the project that were supplied to Miller by Tradesmen International.  While it was stipulated that Miller and Tradesmen were joint employers of the temporary employees, Tradesmen had no employment relationship with Miller's sheet metal workers.

After an NLRB regional director dismissed the election petition, the National Labor Relations Board ("Board") agreed to review the case.

Finding:  The Board began its analysis with a nod to two prior decisions that directly impacted this matter.  The first was a decision from 2000, M.B. Sturgis.  In that decision, the Board had held that it was permissible, without employer consent, to have a bargaining unit comprised of temporary workers that were jointly employed by a "supplier employer" (such as a staffing agency) and a "user employer" (such as the employer that uses the temporary employees) along with other workers who were solely employed by the user employer.  A few years later, the Board overruled Sturgis with a 2004 decision in H.S. Care, LLC, d/b/a Oakwood Care Center and held that certifying a union as the representative of a multi employer unit without the consent of the employers would be inconsistent with the meaning of "employer unit" found in the National Labor Relations Act ("NLRA").

In this decision, however, the Board held that under the meaning of "employer unit", because all of the Miller and Tradesmen workers were performing work for the same "use employer", combing all the workers into a single employer unit was consistent with the language found in the NLRA.  As a result, employer consent is not necessary in these situations.  Therefore, workers that are supplied by a temporary staffing agency to another employer may be lawfully included in a bargaining unit with the employees who are employed solely by the "use employer".

Note, however, that the Board further held that petitioned for units which combine solely and jointly employed workers of a single use employer must share a "community of interest" in order for a single unit combining the two to be appropriate.  Among the factors considered in determining whether the employees share a community of interest, the Board looks to similarities in job duties, wages, hours, fringe benefits, skills, training, working conditions, and common supervision.  Consequently, so long as there is a community of interest, the temporary workers can be included as part of the bargaining unit.  Once that happens, the temporary workers can vote in union elections along with employees of the "user employer" and if a union is chosen, these temporary workers are entitled to engage in collective bargaining through the union representative.

Decision:  In a 3 - 1 decision, the Board reversed its 2004 decision in Oakwood Care Center and held that unions can seek representation elections in units that combine temporary workers alongside full-time/permanent workers of "user employers", even if the "user employer" does not consent to the inclusion of the temporary workers.

The Takeaway:  This was a very interesting, albeit unsurprising, ruling from the Board.  As noted, back in 2000, in M.B. Sturgis, the Board had held that it was permissible, without employer consent, to have a bargaining unit that combined temporary workers jointly employed by a supplier employer and a user employer along with other full time workers that were solely employed by the user employer.  Then, the Board backtracked and ruled in 2004 in Oakwood that temporary workers could be a part of a union only if the employer consented.  

Given the Board's joint employer ruling last year in Browning-Ferris (and the Board's decidedly liberal makeup), I think this particular ruling was only a matter of time.  Although it is a five member Board, one seat is still vacant, while three of the other four are occupied by more liberal friendly Board members (who decided this case 3 - 1).  

The dissent is well worth a read though, in which Board Member Miscimarra wrote that the Board's decision on this matter amounted to an unwarranted expansion of the NLRB's joint employer standard.  Perhaps the key takeaway from the dissent is the suggestion that this decision will result in a blow to stable bargaining relationships.  I would remind readers that this decision is significant in so much that any employer who uses one or more temporary staffing agencies is faced with a situation in which consent is no longer required for temporary workers to be included in bargaining units.  And based upon this 3 - 1 decision, employers are again put on notice of the labor friendly nature of this Board...

Date:  July 11, 2016

Opinionapps.nlrb.gov/link/document.aspx/09031d45821490a5

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