Burr Alert: Labor Board Expands Unions' Ability To Organize "Bargaining Units" That Includes Staffing Agency Employees
On July 11, 2016, the Labor Board released its long-anticipated decision in Miller & Anderson, Inc., 364 NLRB No. 39 (2016). This case revives a rule from the Clinton-era Labor Board, namely the rule from M.B. Sturgis, Inc., 331 NLRB 1298 (2000) -- previously overruled in 2004 -- and alters Board procedures for handling union-petitions involving employees of staffing agencies (and potentially other on-site contractors). Unless the courts intervene, it may now be possible for staffing agency employees to be part of the same "bargaining unit" as the host employer's own employees, even without the employer's consent.
Some practical effects of this change include the following: (i) "joint employee" union authorization cards may now be used to establish the 30% threshold of the eligible employees needed for the Labor Board to order an election in a prospective "bargaining unit" at an employer's worksite; (ii) "joint employees" may now have the same voting power as employer's own employees to determine whether the workforce becomes unionized; and (iii) if the union wins the election, the employer may now be obligated to bargain with the union over the terms and conditions of employment both for "jointly employed" staffing agency employees and its own employees and will, thus, be severely restricted in its abilities to modify its business relationships with staffing agencies.
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