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NLRB Overrules M.B. Sturgis
An important representation issue under the National Labor Relations Act (NLRA) involves scenarios where the scope of a bargaining unit is proposed to include both an employer's regular workers and employees supplied by a separate employer, such as a staffing agency. Just over 4 years ago in M. B. Sturgis, 331 NLRB 1298 (2000), the Board stated that “a growing number of employees who are part of what is commonly described as the 'contingent work force' are being effectively denied representational rights guaranteed them under the National Labor Relations Act.” Therefore, the Board majority in Sturgis – -consisting of Chairman Truesdale and Members Fox and Liebman — overruled prior precedent in Lee Hospital, 300 NLRB 947 (1990) and Greenhoot, Inc., 205 NLRB 250 (1973), and held that a bargaining unit could include both regular and supplied employees without the consent of both the regular employer and the supplier employer.
The Consent Principle
The Board revived the consent principle recently in Oakwood Care Center, 343 NLRB No. 76 (2004), holding that units consisting of both regular and supplied employees constitute multiemployer units, which may be appropriate only with the consent of the parties. This time, a Board majority consisting of Chairman Battista and Members Schaumber and Meisburg found that while the Supreme Court has authorized the practice of multiemployer bargaining units where the parties consent to such a unit, the NLRA “reflects that Congress has not authorized the Board to direct elections in units encompassing the employees of more than one employer” without such consent. The Board's decision in Oakwood Care Center serves to resurrect the employer's voice in the determination of an appropriate unit where a “contingent workforce” is involved — and possibly at the expense of supplied employees who seek union representation.
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