United States: NLRB Rules That Temporary Staffing Agency Workers Now Eligible To Vote In Union Elections

The National Labor Relations Board (NLRB) recently held, in Miller & Anderson, that workers supplied by a temporary staffing agency to a single employer may be included in a bargaining unit with permanent employees despite the fact that they are employed by a single, separate employer. The Board's decision overturned its 2004 decision in Oakwood Care Center  wherein the Board held that a unit comprised of permanent and contingent/temporary employees constituted a multi-employer unit and, therefore, required the consent of all interested employers. In light of the Board's 2015 decision in Browning Ferris Industries, Miller & Anderson continues the Board's efforts to facilitate organization efforts in joint employer situations. 

By overturning Oakwood Care Center, the Board has returned to the "community of interest" standard identified in its 2000 Sturgis decision to determine whether a bargaining unit is appropriate.  The Board concluded that a variety of factors should be examined to determine whether a community of interests in wages, hours, and working conditions exist among the workers involved, including:

• whether the employees work side-by-side at the same facility,
• whether they are under the same supervision,
• whether they perform similar work,
• whether there is significant contact or interchange, and
• whether they share common working conditions.

Employers and contingent/temporary staffing agencies should review current and future work arrangements to determine whether a sufficient community of interest exists between the jointly employed workers.  If a community of interest is present, they may be able to combine into a single collective bargaining unit without the consent of either employer.  Both parties should consider contractual changes to minimize the likelihood that a community of interest is found, provide for indemnification, and outline responsibilities of the parties during any future union organizing or collective bargaining.

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