NLRB Rules Temporary Workers Can Be Included in Client Bargaining Units Without Consent

Board Reinstates 2000 M.B. Sturgis Decision

Sweeping aside legal precedent that had stood for more than 10 years, the U.S. National Labor Relations Board today ruled, in the case of Miller & Anderson Inc., that staffing firm temporary employees can be included in a client’s existing bargaining unit without staffing firm and client consent, so long as the temporary workers are jointly employed by the client (using NLRB’s new relaxed standard) and share a community of interest with the client’s employees regarding the terms and conditions of employment. Under prior NLRB precedent, temporary employees could not be included in a client’s existing bargaining unit without the client’s and staffing firm’s consent.

Although today’s decision represents a win for organized labor and a return to the legal standard last espoused by NLRB in its 2000 M.B. Sturgis Inc. decision, ASA does not expect the ruling to significantly affect staffing firm–client relationships.

In Miller & Anderson Inc., the Sheet Metal Workers union attempted to organize a collective bargaining unit consisting of Miller & Anderson employees and a staffing firm’s temporary employees. A NLRB regional director dismissed the union’s petition to represent the employees in a single unit, relying on NLRB’s 2004 ruling in H.S. Care LLC dba Oakwood Care Center that temporary employees cannot join a client’s existing bargaining unit without the client’s and staffing firm’s consent.

The Sheet Metal Workers appealed, arguing that NLRB should reinstate M.B. Sturgis and allow for inclusion in a bargaining unit without both employers’ consent. The staffing firm filed a motion to dismiss the case on the ground that Miller & Anderson had stopped using temporary help well before NLRB decided to review the matter.

ASA filed an amicus brief in the case, arguing that the National Labor Relations Act requires the consent of both employers and that Oakwood Care Center was controlling. The U.S. Chamber of Commerce, National Association of Manufacturers, Associated Builders and Contractors, and other groups also filed briefs urging NLRB to adhere to Oakwood.

Nevertheless, NLRB reversed itself and ruled that staffing firm and client consent is not required under the NLRA, and that any consent requirement would frustrate NLRB’s duty to afford employees the “fullest freedom” to exercise their right to bargain collectively.

Addressing Client Concerns
Today’s decision was widely expected. Unlike court decisions that are largely insulated from political considerations, NLRB decisions are uniquely sensitive to which political party controls the White House. Thus, it was widely anticipated that the current NLRB, whose majority was appointed by President Obama, would overturn Oakwood Care Center (decided during the term of President George W. Bush) and return to M.B. Sturgis (decided during the term of President Clinton).

As a result of today’s decision, complex issues could potentially arise over which party, the staffing firm or the client, controls which terms and conditions of temporary workers’ employment for purposes of bargaining. Equally thorny issues could arise in determining whether the staffing firm’s employees have a sufficient commonality of interest with the client’s employees to warrant certifying a bargaining unit consisting of both.

However, it is important to note that the M.B. Sturgis ruling did not have a significant impact on the staffing industry during the four years it was in effect, and Miller & Anderson similarly is likely to have little practical effect. Few temporary workers are assigned to work sites with existing collective bargaining arrangements—and unions generally have shown little interest in separately organizing temporary workers, bargaining over the terms and conditions of temporary workers’ employment, or using temporary workers as a way to organize nonunion work sites. Moreover, temporary workers have shown little interest in joining unions and paying union dues. Thus, it is likely that relatively few staffing clients will be faced with the prospect of unionized temporary workers.