Employers routinely supplement their regular workforces with temporary employees supplied by another employer, typically a staffing agency. Under current National Labor Relations Board law, a union can organize a bargaining unit consisting of both regular and temporary employees only if both employers consent. The current law may change, however, as the Board recently granted review of an NLRB Regional Director’s decision in Miller & Anderson Inc., a case which provides the Board with an opportunity to review and possibly discard existing law that is favorable to employers. 

In Miller & Anderson, the Sheet Metal Workers sought to organize a unit consisting of both Miller & Anderson employees and temporary employees supplied by an agency. The temporary employees used by Miller & Anderson worked side-by-side with Miller’s own employees and performed the same work. In an unpublished administrative dismissal, the Regional Director dismissed the union’s petition to represent both sets of employees in a single bargaining unit. In dismissing the petition, the Regional Director relied on the Board’s 2004 decision in H.S. Care, L.L.C., d/b/a Oakwood Care Center. In Oakwood, the Board held that a combined unit of temporary employees from an agency and regular employees requires the consent of both employers. Since the employers subject to the union’s petition in Miller & Anderson did not consent to multi-employer bargaining, the Regional Director dismissed the petition. 

The Board has flip-flopped over the years on this issue. Oakwood overturned the Board’s 2000 decision in M.B. Sturgis, a case in which the Board held that the National Labor Relations Act permitted a combined unit consisting of both permanent and temporary employees without the consent of both employers. M.B. Sturgis, in turn, had overturned decades-old Board authority requiring the consent of both employers in a multi-employer setting. 

In granting the union’s request for review in the Miller & Anderson case, which was filed in 2012, the Board stated that, “the “Petitioner’s Request for Review … raises substantial issues warranting review with respect to the applicability of Oakwood Care Center, 343 NLRB 659 (2004).” That statement, along with the Board’s statement that it intends to seek amicus briefs, is a strong signal that change is coming to this area of the law and it is no stretch to say that the Board may well breathe new life into M.B. Sturgis.