In a 3-1 decision issued this week, the National Labor Relations Board (NLRB) has reinstated a union-friendly standard that makes it easier for temporary workers to unionize either on their own or as part of a bargaining unit with an employer that is using their staffing agency. Staffing agencies and placement site employers no longer can block a combined bargaining unit simply by withholding consent.

In Miller & Anderson, Inc., the NLRB held that where temporary workers (i.e., individuals provided by a staffing agency) and permanent workers (i.e., individuals hired directly by the placement site employer) share a sufficient community of interest, they may negotiate in the same bargaining unit, without either the staffing agency or the placement site employer having to consent. In evaluating whether a sufficient community of interest exists, the NLRB will consider traditional factors regarding wages, hours and working conditions. A collective bargaining agreement that affects both temporary and permanent workers also may provide evidence that the staffing agency and placement site employer are joint employers, potentially exposing both companies to liability under other employment laws as well.

This decision is the latest in a line of NLRB cases that have flip-flopped with regard to whether employer consent is required to organize both temporary and permanent workers. The newest standard marks a return to the M.B. Sturgis, Inc. (2000) era and replaces the previous employer-friendly standard of Oakwood Care Center (2004), which required both the staffing agency and the placement site employer's consent. The decision also builds on Browning-Ferris, an August 2015 NLRB decision that loosened the standard for determining whether a company is a joint employer in the context of the use of a staffing agency. For more information on this previous decision click here.

Miller & Anderson has significant consequences both for staffing agencies and placement site employers. Staffing agencies may be drawn into union campaigns and collective bargaining agreement negotiations alongside placement site employers. Meanwhile, unions targeting placement site employers may seek to include temporary workers as a sympathetic voting block and to augment the size of the bargaining unit. As an example, we saw a union directly refer to an employer's use of temporary workers in a recent effort to solicit employee interest in unionizing. Employers that use staffing agencies should assess the risk of a union campaign among both temporary and permanent workers and run their business in a way that a union has nothing to offer either group, other than the requirement that they pay union dues.