In Miller & Anderson, Inc., the NLRB Reestablished the Right of Workers Who Share a Community of Interest to Form One Bargaining Unit, Even if Some of the Workers are Temps

Now Unions may represent a “mixed unit” of temporary and permanent workers if the primary employer is a joint employer with the company that provides it temporary staff, and the workers share a community of interest.

Miller & Anderson, Inc., 364 NLRB No. 39 (2016)involves the representational rights of an important segment of the “contingent work force,” in this case, temporary workers.  Specifically, the decision addresses whether temps—who really have two employers—can join in the same unit as those regular employees with whom they work side by side but who work directly for the on-site employer.

The Board ruled that temporary employees who are employed jointly by a “user” employer and a “supplier” employer (their staffing agency), can be included in the same bargaining unit with employees who are only employed by the user employer, without having to obtain consent from the user or supplier employer.  This decision overturned the Board’s decision in Oakwood Care Center, 343 NLRB 659 (2004), and returned to the prior M.B. Sturgis, Inc., 331 NLRB 1298 (2000)standard.

The Miller & Anderson decision means one less barrier to forming a bargaining unit for collective bargaining that includes all workers who share a community of interest.

For example, under the previous Oakwood standard, if the regular employees of company A, and temporary employees of both company A and staffing company B wanted to be represented in a single unit for purposes of collective bargaining, they were required to obtain consent from both employers (company A and staffing company B) to be represented in a single unit.  Now, under Miller & Anderson, the regular employees of company A and temporary employees of both company A and staffing company B are not required to obtain consent to be represented in a single unit, if the employees share a community of interest.

Miller & Anderson positively impacts workers in the context of organizing and bargaining.

In the organizing process, we may see some decline in employers’ divide and conquer tactics because employers now know that both joint and solely employed employees can organize into a single unit.  Further, employees in units containing both regular and temp employees now hold greater bargaining strength because employers will have to evaluate their bargaining positions by taking into account the concerns (pay, benefits, ability to discipline) of both the regular and temporary workers, which will likely prevent the reduction of good working conditions for all employees.

The combined impact of Browning-Ferris and Miller & Anderson means that employers will more often be found “joint employers” with no choice but to deal with a single, larger and more powerful potential bargaining unit consisting of both temporary and permanent workers.

Please contact your labor law counsel if you have any questions regarding organizing or this recent NLRB decision.

By Boanerges “BG” Rodriguez Orellana and Lisl Soto | August 23, 2016

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