For decades prior to 2000, the National Labor Relations Board (Board) consistently found that a bargaining unit was inappropriate when the union sought a unit consisting of employees of one employer together with employees of a separate employer, unless all of the employers involved consented. For example, a proposed unit consisting of employees of (i) a host company and (ii) a staffing company which provided additional labor to the host company was inappropriate for collective bargaining, absent consent of both employers.

In 2000, the Board reversed its position and held that temporary employees provided by a staffing company could be included in a single bargaining unit with the contracting employer’s regular employees, even without consent of both employers. M.B. Sturgis, 331 NLRB 1298 (2000). The key issue for the Board to decide with such a petition was whether the regular employees and the temporary agency employees shared a sufficient community of interest.

The Board’s ruling in M.B. Sturgis was relatively short lived, however. In 2004, in Oakwood Care Center, 343 NLRB 659 (2004), the Board rejected the holding in M.B. Sturgis and disallowed inclusion of solely employed employees and jointly employed employees in the same bargaining unit, absent consent of the employers.

It looks like the Board is looking to change its position yet again. On July 5, the Board issued notice inviting the filing of briefs regarding the pending case of Miller & Anderson, Inc. (05-RC-079249) “to allow parties and interested amici an opportunity to address issues . . .including whether the Board should adhere to its decision in Oakwood Care Center . . . and if not, whether the Board should return to the holding of M.B. Sturgis, Inc. (331 NLRB 1298), which permits the inclusion of both solely and jointly employed employees in the same unit without the consent of the employers.” Briefs must be submitted by August 5, 2015.

Such requests from the Board usually portend a significant change in the law. Staffing companies and employers that use staffing companies to provide temporary employees need to keep a watchful eye on this issue. In addition, these companies need to begin now to prepare for the possibility of a petition for a bargaining unit of employees from both.

We will keep you informed of developments.