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NLRB Eliminates Employer Consent Requirement for Combined Bargaining Units

On July 11, 2016, the National Labor Relations Board (the “Board”) issued its long anticipated decision in the Miller & Anderson case, holding that temporary employees supplied to a company by staffing agencies no longer need their company’s permission to unionize with a company’s regular, permanent employees.1 More precisely, the Board ruled that “solely employed employees” and “jointly employed employees” may now combine in a single bargaining unit without any consent from the employer who employs the temporary workers so long as the groups share a “community of interest”—an arguably broad standard.

This ruling overturns the Board’s 2004 decision in Oakwood Care Center which required temporary and permanent employees to bargain separately unless the employer gave consent.2 However, this ruling complements the Board’s August 2015 decision in Brown-Ferris Industries of California which relaxed the standard for deeming an entity as a “joint employer” of workers supplied by a staffing agency.3 Although temporary employees have always had the option to unionize on their own, a company could choose to cut business ties with the staffing company to avoid bargaining. This latest decision, however, reflects the Board’s progressive efforts to make it easier for unions to successfully organize more employees and obtain bargaining rights.

The Board’s Decision

In making its 3-1 decision, the Board observed that nothing in the Act explicitly addresses whether bargaining units that combine both solely and jointly employed employees are appropriate. Rather, the Board found that eliminating the consent requirement “is not only a permissible interpretation of the [Act], but also . . . better serves the purposes of the Act.” The Board further reasoned that a combined unit “logically falls within the ambit” of an employer unit because “[a]ll the employees in such a unit are performing work for the user employer [the employer or company that uses temporary workers] and are employed within the meaning of the common law by the user employer.” And, after noting changes in the American economy over the last several decades, particularly the increased procurement of employees through staffing agencies, subcontractors or contingent employment, the Board found that the consent requirement only created “an obstacle to workers’ freedom to organize and bargain collectively as they see fit even when the [temporary] workers share a broad community of interest with the [user employer’s] solely employed employees they work alongside.”

The Potential Impact

Naturally, this decision will likely increase union participation and specifically facilitate the organization of temporary employees. This decision may also complicate the collective bargaining process by requiring multiple employers—namely staffing agencies who supply, and employers who use, temporary employees—to bargain and pursue a single collective bargaining agreement with these combined units. However, the user employer will only need to bargain with the jointly employed workers regarding the particular terms to which it possesses authority to control.

This is a developing area and employers should continue to monitor new developments closely.

1. Miller & Anderson, Inc., 364 NLRB 39 (2016).

2. Oakwood Care Center, 343 NLRB 659 (2004).

3. Browning-Ferris Industries of Calif., Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 185 (2015).

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume VI, Number 203


About this Author

In recent years, labor and employment disputes have grown larger, more complex and far more likely to pose a significant threat to an employer’s core business interests. The plaintiffs’ bar has dramatically increased its use of high-stakes class, collective, and mass actions to cover a wide spectrum of labor and employment, wage and hour, and public accessibility claims; federal and state agencies are focusing on claims of systemic discrimination and substantially increasing their budgets to litigate pattern or practice cases; and legislators continue to debate laws...

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