In reversing a prior ruling, the National Labor Relations Board (NLRB) recently determined that regular employees and those employed at the same company through staffing agencies may join together to form a union without employer or staffing agency consent. This decision in the Miller case discards the prior Oakwood case that required consent from the employer and the staffing agency. While the proposed union under Miller would still need to show a community of interest between the regular and staffing employees, that test is also easier under current NLRB decisions.
Beyond easing the formation of these hybrid member unions, having regular employees and those employed through staffing agencies in the same union would also make it easier for employees and regulators to argue joint employment and liability in wage-and-hour matters and for OSHA, workers' compensation and other claims.
The Miller NLRB decision is consistent with the recent Specialty Healthcare ruling making it harder to challenge proposed bargaining units that exclude certain employees, and the Browning-Ferris decision, which specifically made the test for joint employment easier.
Employers must be ever more prepared for possible unionization activities because of these recent decisions, combined with the new rules that have sped up the election process. Consultation with experienced labor counsel is crucial.