June 29, 2015
Under current National Labor Relations Board (NLRB) standards, a union can organize a bargaining unit of an employer’s regular employees and temporary employees supplied by a staffing agency only if both the employer and the staffing agency consent. That, however, may soon change. On May 18, 2015, the NLRB granted review of a regional director’s dismissal of a union election petition seeking to organize in a single bargaining unit (1) an employer’s regular employees, (2) temporary employees jointly employed by the employer and a staffing agency, and (3) temporary employees employed solely by the staffing agency. By granting review, the NLRB appears poised to revive M.B. Sturgis, Inc., 331 NLRB 1298 (2000), which was overturned more than a decade ago, and permit bargaining units combining those employees without the joint consent of both the employer and the staffing agency.
Since the 1970s, the NLRB had consistently found bargaining units comprised of an employer’s regular employees together with the employer’s temporary employees supplied by a staffing agency to be inappropriate without the consent of both the employer and the staffing agency. Greenhoot, Inc., 205 NLRB 250 (1973).
The NLRB changed its position in M.B. Sturgis when a Clinton-appointed NLRB held that temporary employees supplied by a staffing agency could be included in a single bargaining unit with an employer’s regular employees without the consent of both employers. Under M.B. Sturgis, temporary employees could be included in a single bargaining unit with regular employees as long as: (1) the staffing agency and the employer were determined to be joint employers, and (2) the temporary employees shared a community of interest (e.g., similar skills and functions, similar working conditions, similar wage and benefit packages, and common supervision) with the regular employees. Notably, M.B. Sturgis did not require a finding of joint employment for all employees in the bargaining unit. In that regard, M.B. Sturgis allowed unions to organize both joint-employer and single-employer employees into a single bargaining unit when at least some of the impacted employees were jointly employed. The M.B. Sturgis decision, however, was short-lived. In 2004, a Bush-appointed NLRB overturned M.B. Sturgis, returning to the joint-consent standard established in Greenhoot. Oakwood Care Center, 343 NLRB 659 (2004).
Now, the NLRB appears poised to revive M.B. Sturgis to facilitate multiemployer bargaining. In 2012, the NLRB Region 5 director dismissed a union petition to represent all sheet metal workers employed by Miller & Anderson Inc. (“Miller”) and Tradesmen International (“Tradesmen”) on all job sites in Franklin County, Pennsylvania. The union’s proposed bargaining unit included Miller’s regular employees, temporary employees employed solely by Tradesmen, and temporary employees employed jointly by Miller and Tradesmen. Relying on Greenhoot and Oakwood Care Center, the regional director held that the petition was inappropriate because Miller and Tradesmen did not both consent to multiemployer bargaining.
After deliberating for three years, the NLRB granted the union’s petition for review of the regional director’s decision. In doing so, the NLRB noted that the petition for review “raises substantial issues warranting review with respect to the applicability of Oakwood Care Center, 343 NLRB 659 (2004)” and announced its plan to invite amicus briefs on the issue. The NLRB’s statements are a strong indication that it will breathe new life into M.B. Sturgis and significantly bolster unions’ ability to organize regular and staffing agency employees in the same bargaining unit. Freed from the requirement of joint consent, unions will be able to organize workforces comprised of regular and temporary employees more easily.
As we previously reported, the NLRB also has sought briefing on significantly expanding the “joint employer” doctrine. The NLRB’s decision to review even more well-established precedent appears to be part of a continued effort to facilitate union organizing of separate businesses. Therefore, employers should continue to monitor developments from the NLRB closely.
Please reach out to your McGuireWoods contact or members of the firm’s traditional labor team with any questions you may have concerning this advice memorandum, the NLRA, or the NLRB in general.