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NLRB Changes Course And Allows Workers To Choose To Form A Single Bargaining Unit Of Temporary And Permanent Employees


The use of temporary workers has exploded in the United States. More than 15 percent of the U.S. work force is now employed by a temporary help agency, through contract firms, or as “independent contractors.”* Ten years ago that number was ten percent. Until now, these temp workers could not join together to form a collective bargaining unit with their fellow “permanent” workers, even if they worked side-by-side performing identical work.

On Monday July 11, 2016, in a 3-1 decision, the NLRB reversed its rule of requiring employers to consent before proceeding to a representation election of a proposed bargaining unit that includes both temporary and permanent employees. In the past, consent by the employer was required even when the temporary and permanent employees satisfied the traditional “community of interest” standard applied by the Board in representation election cases.

The Board eliminated the employer consent requirement in Miller & Anderson, 364 NLRB No. 39 (July 11, 2016), noting:

Anyone familiar with the Act’s history might well wonder why employees must obtain the consent of their employers in order to bargain collectively. After all, Congress passed the Act to compel employers to recognize and bargain with the designated representatives of appropriate units of employees, even if the employers would prefer not to do so.

In overturning the employer consent rule inOakwood Care Center, 343 NLRB 659 (2004), the Board explained the new rule:

Employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer. Instead, we will apply the traditional community of interest factors to decide if such units are appropriate...[T]here is no statutory impediment to processing petitions that seek units composed only of the employees supplied to a single user, or that seek units of all the employees of a supplier employer and name only the supplier employer.

Miller & Anderson, 364 NLRB No. 39, *2.

In reaching its conclusion, the Board reviewed how the employer consent rule came about noting that until 1990, the Board included temporary and permanent employees in one unit regardless of employer consent. In1990, the Board reversed its practice in Lee Hospital, 300 NLRB 947 (1990). In that decision, th e Board began to require consent, “without any explanation or even so much as an acknowledgement from the Board that it was breaking with precedent.” Miller & Anderson, 364 NLRB No. 39, *3. The Board departed from Lee for a four-year period in M.B. Sturgis, 331 NLRB 1298 (2000), but changed course again in Oakland, 345 NLRB 659 (2004).

In Miller & Anderson, the Board returns to Sturgis:

Sturgis is manifestly more responsive than Oakwood to Section 9(b)’s statutory command to the Board, in deciding whether a petitioned-for bargaining unit is appropriate, to assure to employees the fullest freedom in exercising the rights guaranteed by the Act… The Board has recognized that a key aspect of the right to self-organization is the right to draw the boundaries of that organization—to choose whom to include and whom to exclude…In contrast, Oakwood denies employees in an otherwise appropriate unit full freedom of association.

Miller & Anderson, 364 NLRB No. 39, *8 (internal citations omitted).

This decision is good news for workers, as they now have the freedom to choose if they want to bargain in a single unit as temporary and permanent workers. As long as workers meet the community of interest standard, the Region should now honor their representation petition for an election.