The National Labor Relations Board released a 3-1 decision Monday that employees directly employed by a company and contingent workers employed by a staffing firm do not need permission from both employers in order to organize as long as the workers share a “community of interest with one another.”
Prior to Monday’s decision in the Miller & Anderson case, groups of directly employed workers and contingent workers needed consent from both the staffing buyer and staffing firm to organize. An earlier board decision in a 2004 case, referred to as Oakwood Care Center, called for the requirement. The Oakwood decision itself overturned a decision from 2000, referred to as M.B. Sturgis, that allowed workers, both directly hired and contingent, to form a single bargaining unit without the employers’ consent.
“During the four-year Sturgis period that the NLRB has now revived, there were few union attempts to include contingent workers in staffing customers’ bargaining units,” said George Reardon, an attorney specializing in staffing industry law.
“The reasons may have been that local union officials didn’t fully appreciate the opportunity, that the bargaining process was looking awfully complicated, and that unions and employers both expected contingent workers to vote against unions,” Reardon said. “I also suspect that unions didn’t want to be on the other side of a bargaining table from staffing firms that didn’t have their entire businesses at stake. After this unsurprising Miller & Anderson decision, all of those factors should continue to suppress demands for combined bargaining units.”
The decision is available as a PDF download.
Monday’s decision follows another decision last year when the NLRB voted 3-2 to expand the definition of joint employment for contingent workers.