Work it Out Blog

NLRB Clears the Path to Bargaining Units Which Include Temporary Workers

Sep 06, 2016 by Jill C. McQueen

Temporary employees have become a common feature of many workplaces. This summer, the National Labor Relations Board departed from a long-standing standard, making it easier for temporary employees to be included in the same bargaining unit as permanent employees.

When an employer supplements its staffing needs with temporary workers, its workforce has two components: the individuals it solely employs, and the individuals it employs jointly with the employment agency that has placed them. Until last month, and for more than a decade, the NLRB had taken the position that an organization’s jointly employed workers cannot be in the same bargaining unit as that organization’s solely employed workers without the consent of both the staffing agency and the business to which the workers are assigned.

The case, 364 NLRB No. 39, involved electrical and mechanical contractor Miller & Anderson. The Tradesmen International union had petitioned to represent all of the contractor’s sheet metal workers at a single job site in Pennsylvania. The Board’s Regional Director dismissed the petition on the basis that the contractor and the placement agency which supplied labor had not consented to a combined unit.

In a 3-1 decision, the NLRB reversed, reasoning that requiring the consent of both the using and the supplying employers unduly limited employees’ rights to organize. The Board held that allowing such combined units—even when the employers object—assures employees “the fullest freedom” to organize either separately or together. Board Member Philip Miscimarra cast the sole dissenting vote.

The Board announced that it will continue to apply the traditional community-of-interest test to determine if a single bargaining unit is appropriate. The factors used to determine a community of interest include whether the employees in the proposed bargaining unit experience similar working conditions, perform similar types of work and possess similar skills, have regular contact with each other and are interchangeable, receive similar wage and benefit packages, and have common supervision.

Once a combined bargaining unit has been recognized, the employer will be required to negotiate regarding all terms and conditions of employment for the unit employees it solely employs, but—when it comes to jointly-employed workers—will need to bargain only over those terms and conditions it has the authority to control.

If you have questions about bargaining units, contact Day Ketterer's employment law attorneys, call 330.455.0173, or email

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