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NLRB Eases Unionization of Employees Referred by Staffing Agencies

July 11, 2016

In another blow to management, on July 11, 2016, a divided National Labor Relations Board issued Miller & Anderson, in which it reversed course after more than a decade to return to the rule established in the 2000 case of M.B. Sturgis, Inc., whereby employees supplied by a staffing agency can be included in a single bargaining unit -- and vote in an NLRB representation election -- with an employer’s regular employees without the consent of both employers. 

In 2004, M.B. Sturgis was itself reversed by Oakwood Care Center, in which the Board held that a union could organize a bargaining unit consisting of an employer’s regular employees and employees supplied by a staffing agency only if both the employer and the staffing agency consented to a combined secret ballot election.

In reviving Sturgis, the Board majority in Miller & Anderson held that unions seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain consent from both employers.  Rather, the union must merely demonstrate that the two categories of employees share a “community of interest” in order for a single unit of employees to be deemed appropriate.  According to the majority, the Board will apply the traditional community of interest factors to determine the appropriateness of such a unit.  These include common supervision, common terms and conditions of employment such as pay and benefits, and the interchange between operations of the two categories of employees.

Today’s decision does not come as a complete shock.  The Board’s decisions are frequently influenced by the political party in power. A Clinton-appointed Board decided Sturgis, which was soon reversed by a Bush-appointed Board in Oakwood.  Twelve years later, the pro-union Obama-appointed NLRB has again reversed course. No longer required to obtain joint consent, unions will now be able more easily to organize workforces comprised of regular employees and staffing agency employees.