NLRB Makes it Easier to Unionize Temporary Workers

On Monday, the National Labor Relations Board made it easier for unions to organize temporary workers in a 3-1 decision in the case Miller & Anderson. In doing so, the Board reversed its ruling in Oakwood Care Center, 343 NLRB 659 (2004) and returned to the standard established in M.B. Sturgis, Inc., 331 NLRB 1298 (2000). 

The case dates back to 2012 when the Sheet Metal Workers International Association, Local Union No. 19 petitioned to represent regular workers employed by electrical and mechanical contractor Miller & Anderson, temporary workers employed by Tradesmen International, and temporary workers jointly employed by Tradesmen International and Miller & Anderson. Relying on the Board's 2004 decision in Oakwood, the regional director dismissed the union's bid to represent a unit combining employees of both companies, finding solely and jointly employed workers cannot be in the same unit without employer consent. 

In overturning the regional director's decision, the Board found the rule articulated in M.B. Sturgis more persuasive than Oakwood. Returning to the M.B. Sturgis standard, the Board held consent is not required and that temporary workers from a staffing agency can be included in a unit with the traditional workers if they have an adequate "community of interest." According to the ruling, the Board will apply the traditional community of interest factors for determining the appropriateness of such a unit.

This decision is likely to complicate the test for determining joint employer status, which was established in August of 2015 when the Board issued its ruling in Browning-Ferris. In that case, the Board held that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or co-determine matters governing the terms and conditions of employment. This two-step test made it easier for staffing agencies with temporary employees to participate in bargaining. However, it was not in existence at the time M.B. Sturgis was decided, so it remains unclear how the two standards will interact. What is clear is that the Board continues to issue decisions making it easier for all types of employees to unionize. 

Questions?  Please contact your regular Hinshaw attorney.