This is an issue that has ping-ponged at the NLRB over the years. For decades, the rule was that if a union petitioned to represent direct / permanent employees at a work site along with temporary employees provided by an outside entity, both of the employers (the company and the temporary agency) would have to consent. During the Clinton NLRB era, the NLRB changed that rule in its M.B. Sturgis, Inc., 331 NLRB 1298 (2000), decision, which eliminated the consent requirement. That was quickly overturned by the George W. Bush-era NLRB, however, in its 2004 Oakwood Care Center, 343 NLRB 659 (2004) decision, as Oakwood reinstated the consent requirement. In Miller & Anderson, the NLRB reversed itself yet again and returned to the Clinton-era standard.
Once again, employer consent is no longer required for potential bargaining units that combine jointly employed and solely employed employees of a single user employer. In other words, regular employees (employed directly by the owner of the business) and temporary employees (supplied by an outside temporary staffing agency) can be in the same bargaining unit – and therefore vote together on representation. The NLRB noted it will apply the traditional community of interest factors (i.e. factors related to similarity of terms and conditions of employment) to decide if such units are appropriate.
Now, two different employers will be responsible for bargaining over terms and conditions of employment. These employers may have different and competing objectives to achieve during bargaining, which could result in them being at odds with one another, as well as the union, during the bargaining process.
Between this decision and the “quickie election rules” issued in 2015, companies using temporary labor should consider staying vigilant with respect to union avoidance efforts. Because now, workers who are not employees of a company can bind a company to a collective bargaining agreement within days of a union organizing drive commencing.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.