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NLRB Poised to Change Rule for Unionizing Temporary Workers

Setting the stage for another likely change in Board law, the NLRB has granted review over a Regional Director’s dismissal of an election petition, where the Union sought to represent in the same bargaining unit a contractor’s own employees and temporary employees provided to the contractor by a staffing company. In its May 18, 2015, announcement on this hot-button issue, the Board followed its now-familiar pattern of inviting interested parties to file amicus briefs, this time over the continued applicability of the Board’s 2004 decision in Oakwood Care Center, 343 NLRB 659, on which the Regional Director relied.

In Miller & Anderson, Sheet Metal Workers Local 19 petitioned the NLRB to represent all sheet metal workers employed in in a three-employer, Franklin County, PA, unit, consisting of: 1) employees of Miller & Anderson (M&A), the host employer, 2) employees employed by Tradesmen International, a temporary service providing workers to M&A, and 3) employees jointly employed by M&A and Tradesmen.

Under Board precedent in Oakwood Care Center, a bargaining unit consisting of employees employed solely by a host employer (or, presumably, those employed by a temporary service alone) and those jointly employed by the host employer and the temporary service is appropriate only if all the employers involved consent to such multi-employer bargaining – assuming the union wins the election. M&A and Tradesmen did not consent to the conduct of an election in a multi-employer voting unit, or to multi-employer bargaining in the event the Union prevailed in the election. Thus, in accordance with Oakwood Care Center an NLRB Regional Director dismissed the petition. Local 19, however, sought review by the NLRB. Three years later, the Board has granted the union’s request to examine the “applicability of Oakwood Care Center. 

The competing policies implicated by such cases and which culminated in Oakwood Care Center are familiar, and have been resolved by the Board in dueling decisions in a number of cases.   From the Union’s perspective, the current Board rule does not adequately reflect the reality of the modern workplace, in which a significant share of the American workforce is working in “contingent and alternative employment arrangements.”   In its view, the rule stands as an unwelcome impediment to union organization. The Union would have the Board return to the rule articulated in M.B. Sturgis, 331 NLRB 1298 (2000), in which the Board held that separating “regular” employees (those employed solely by the host or “user” employer) from the “temporaries” (who may share the same classifications, skills, duties and supervision) creates an “artificial division” between such employees not required or justified by the statute. In Sturgis, the Board found that all employees doing work for the host employer – regular and temporaries – did not constitute a multi-employer unit requiring the employers’ consent.

Subsequently, in Oakwood Care Center, however, the Board majority reversed the position it had taken in M.B. Sturgis, holding that certifying a union as representative of a bargaining unit consisting of both “regular” employees and “temporaries,” absent the consent of the employers, would be “inconsistent with the plain meaning of ‘employer unit’ in the Act.”  The Union in M&A would have the current Board adopt the reasoning of the two Board members who dissented in Oakwood Care Center, who defended the Sturgis decision.   The dissenters argued all employees are on the site work for the host employer as part of a “common enterprise,” so it would be appropriate for the joint employees to be combined with the employer’s sole employees in a “joint bargaining unit.”

Until the Board decides Miller & Anderson, host or “user” employers of the services of temporary employees should assess their posture with respect to such relationships, and the implications of the Board’s possible return to its M.B. Sturgis standard.

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 154
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About this Author

Thomas M. Lucas, Jackson Lewis, complex labor litigation lawyer, disability management attorney
Office Managing Principal

Thomas M. Lucas is Office Managing Principal of the Norfolk, Virginia, office of Jackson Lewis P.C.

Mr. Lucas represents management exclusively in the full range of employment and labor law matters, including employment discrimination litigation and traditional labor law. He has represented corporate clients, including clients in the maritime, ship repair, manufacturing, healthcare and service industries, throughout the Mid-Atlantic Region and nationally for more than 30 years. Prior to entering private practice, Mr. Lucas...

757-648-1424
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
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