Hunton Employment & Labor Perspectives

On July 6, 2015, the National Labor Relations Board invited interested parties and amici to submit briefs in Miller & Anderson, Inc., 05-RC-079249, in connection with the Board’s reexamination of whether temporary employees provided to a company by staffing agencies may be included in the same bargaining unit as the company’s direct employees.  Briefs are due by September 4, 2015.

Under the current law, established in Oakwood Care Center, 342 NLRB No. 7 (2014), the Board will only certify a bargaining unit that includes both solely and jointly employed employees if both employers (i.e., the employer and the temporary staffing agency) consent to the inclusion.

In Miller & Anderson, Inc., a regional director followed the Oakwood Care Center rule and dismissed an election petition when both of the joint employers did not consent to the inclusion of temporary employees in the proposed bargaining unit.  Now, three years after the union filed its petition, the Board has granted the union’s request for review of this dismissal.

This invitation likely signals the Board’s intent to return to the pre-Oakwood Care Center rule regarding inclusion of temporary employees.  Under the previous rule, articulated in M.B. Sturgis, 331 NLRB 1928 (2000), regular employees and temporary employees could be included in the same bargaining unit – even if both employers did not consent – so long as there was a sufficient community interest between the two groups.

A shift to the old rule regarding temporary employees is unsurprising given the widely-held expectation that the Board will soon announce a relaxed standard for finding employers to be joint employers.

We will continue to monitor developments in this case and update our blog on this topic.