In an NLRB decision this week in the case of Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL–CIO, the NLRB has made it easier for Unions to organize units consisting of both regular employees and temporary or staffed employees (i.e., “temps”). In the future, employers can expect the Board to presumptively approve union elections with a voting bloc consisting of temporary and permanent employees together. If the union wins those elections, both employers will have to negotiate with a bargaining unit that includes both kinds of employees together.
Employees typically form unions by petitioning for an election among a given “unit” of employees. For instance, at a department store chain, a Union may seek to have an election among a unit of all of a single store’s retail employees, or only that store’s shoe department employees, or the shoe department employees from all of its stores in the region, or the shoe and perfume employees of a store or region, etc. To be recognized, a majority of the chosen voting “unit” must vote to unionize. For obvious reasons, what “unit” of employees votes is often critical to whether or not the Union wins the election.
M&A deals with whether and when unions can form a voting “unit” consisting of temporary employees from a staffing company (in the Board’s parlance, the “supplier employer”) and permanent employees of the client company (the “user employer”) when they work together at a user-employer. In the Board’s view, particularly in light of its recent decision in Browning-Ferris, temporary employees are “jointly” employed by both the supplier-employer and user-employer.
Under an earlier 2004 Board decision, Oakwood, temporary and regular employees could not form a voting unit together unless the supplier-employer and user-employer both consented to that election. M&A overturns Oakwood. Now, temporary and regular employees can form a voting unit and petition the Board for an election without either employers' consent.
Whether or not a unit includes temporary employees, the “unit” can be challenged by employers as “inappropriate” (for instance, a unit consisting of a store’s shoe department employees and its accountants would probably not be appropriate because their jobs are so different they lack a “community of interests” for collective bargaining). However, the Board in recent years has also made it much more difficult to challenge the “appropriateness” of units or to contest elections generally.
Therefore, at least given its current makeup, “supplier” and “user” employers can expect that the Board will presumptively approve voting and bargaining units consisting of both temporary (“jointly-employed”) and regular (“user-employed”) employees together. As before, the Union can still choose to petition units of just permanent employees or just temporary employees, and indeed will do so if it appears more likely to win with those units.
NOTE: Williams Mullen represented Miller & Anderson in the initial phase of the case. Ironically, the Board's ultimate holding had no immediate impact on Miller & Anderson as the relevant project had concluded years prior to the Board's decision. Commenting on the decision, lead attorney Doug Nabhan says "The National Labor Relations Board is constantly looking at ways to make it easier to organize workers and this is just another effort at that goal. I believe it will be difficult to organize a temporary placement company. They are generally just happy to have a job."
