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José J. Santiago
Carlos A. Padilla
Antonio L. García
Vol. 2016, No.8 July 15, 2016
NLRB FINDS THAT EMPLOYER CONSENT IS NOT REQUIRED FOR A UNION TO REPRESENT A BARGAINING UNIT COMPRISED OF BOTH REGULAR AND TEMPORARY EMPLOYEES
In the case of Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the National Labor Relations Board (NLRB) in a 3-1 decision held that a union may represent a bargaining unit comprised of both regular and temporary employees supplied by another employer (temporary service agency) without obtaining the employer’s consent. Previously, the NLRB would not permit an election in a bargaining unit that combined employees from more than one employer unless all employers agreed.
The Board concluded its traditional rule was not consistent with the growing trend to use temporary employees in a variety of industries and that the rule limited the opportunity of those employees' for workplace representation. Therefore, the Board held that employer consent will no longer be required for a bargaining unit that combines both the user employer's regular employees and temporary employees jointly employed by the user employer and the supplier employer. The Board now will approve such a unit if the regular employees and the temporary employees share a community of interest. The Board will apply the traditional community of interest factors for determining unit appropriateness. A user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. However, it will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.
The representation case was remanded to the Regional Office for further action. It is expected that this decision will make it easier for unions to organize temporary employees.
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