The NLRB recently reversed course again to allow temporary employees provided by a staffing agency to join regular employees in a single bargaining unit without the consent of the employer or the staffing agency. Miller & Anderson, Inc., 364 NLRB No. 39 (2016).

The Board Flip Flops

Historically, unions seeking to organize employees directly employed by an employer (called a “user employer” by the Board) alongside temporary employees provided by a staffing agency (“provided employees”) in a single bargaining unit were required to obtain consent of both the user employer and the staffing agency.

In 2000, however, the Clinton Board overturned that rule to eliminate the consent requirement, allowing employees to form one bargaining unit as long as they shared a community of interest and the employer and the staffing agency were considered “joint employers.” M. B. Sturgis, Inc., 331 NLRB 1298 (2000).  Four years later, the Bush II Board decided Oakwood Care Center, 343 NLRB 659 (2004), and overturned the Board’s decision in Sturgis to again require consent.

Now, the Obama Board has returned to the standard set by the Clinton Board allowing such a bargaining unit without consent. Interestingly, the Board does not view this decision as a retreat to the past; rather, it argues it is adjusting to an evolving U.S. economy, in which the employment services industry (i.e., staffing agencies) is “one of the largest and fastest growing [industries] in terms of employment.”

The issue, as the Obama Board described it, is that federal labor law is designed “to protect and facilitate employees’ opportunity to organize unions to represent them in collective bargaining negotiations,” and the Board’s role is to “assure to employees the fullest freedom in exercising the rights guaranteed by” federal labor law. Accordingly, because “[a]ll the employees in [a unit combining regular and provided employees] are performing work for the user employer and are employed . . . by the user employer,” the Obama Board found it appropriate for them to be organized as a single bargaining unit.  Requiring them to first obtain employer consent, according to the Board, would curb employees’ freedom to organize.

Limitations and Employer Obligations

Over the last several years, the Board has eroded other limitations on a bargaining unit composed of regular and provided employees—the “community of interest” and “joint employer” tests—by allowing so-called “micro units” in Specialty Healthcare in 2011 and expanding the “joint employer” test in Browning-Ferris in 2014.  Those changes, combined with this decision, mean that employers will face a change in the way employees organize and the employees with whom employers are obligated to bargain.

Looking Ahead

The full impact of this decision remains to be seen. Needless to say, if there is a Trump Board in America’s future, the rule could easily be reversed in a couple of years, while a Clinton  Board almost certainly would keep the rule in place.  Check back here in November.