In its 2004 Oakwood Care decision, the National Labor Relations Board concluded that a union seeking to organize a unit of workers that includes both permanent and temporary employees obtained from a third-party agency, must obtain the approval of the two employers to certify a multiemployer bargaining unit. Earlier this month, the NLRB essentially reversed Oakwood Care, finding that the NLRA allows such multiemployer units without employer consent when one employer controls the work of all employees in the proposed bargaining unit.

In Miller & Anderson, Inc., the union argued that Section 9(b) of the NLRA’s consent provision does not apply when the two employers are not entirely independent entities. The Board majority stated that an opposite conclusion would ignore the nature of many current workplaces, where permanent and temporary employees work under the same terms and conditions of employment. It would also require unions to run two concurrent bargaining efforts with each employer.

The dissenting Board member stated that the NLRB exceeded its statutory authority by ignoring Section 9(b). He also noted the difficulties involved for employers in forming stable bargaining relationships when the unit is made up in part of temporary employees who frequently depart based on business needs or changes in the use of a particular temp agency.

Unless this decision is overturned by a federal court, employers facing bargaining efforts cannot assume that their temporary workers will not be included in the proposed bargaining unit.