NLRB OVERRULES PRIOR DECISION ON PROPER MAKEUP OF BARGAINING UNITS AND RETURNS TO LONG-STANDING RULE AGAINST INCLUDING TEMPORARY-AGENCY EMPLOYEES IN THE SAME UNIT AS THE HOST EMPLOYER’S EMPLOYEES.

H.S. Care L.L.C., d/b/a Oakwood Care Center and N&W Agency, Inc. and New York’s Health and Human Services Union, AFL-CIO, Petitioner. Case 29-RC-10101.

November 19, 2004.

http://www.nlrb.gov/nlrb/shared_files/decisions/343/343-76.pdf

A petitioned-for unit of non-professional employees at Oakwood’s facility in Oakdale, N.Y. included both employees who were solely employed by Oakwood and employees who were jointly employed by Oakwood and by a personnel staffing agency.  The Regional Director granted the petition, and Oakwood appealed to the Board for review, arguing that the unit combining the two groups of employees was inappropriate under the NLRA, which allows for multiemployer units only upon consent of the parties.

In a 2000 decision, Sturgis, the NLRB had allowed the combining of the two groups of employees as a single-employer unit.  In the Oakwood case, the NLRB overruled Sturgis and returned to long-standing precedent, holding that employees obtained from a labor supplier cannot be included in a unit of permanent employees of the employer to which they are assigned unless all parties consent to the bargaining agreement.  Permitting the combined unit would contravene the NLRA by requiring different employers to bargain together regarding employees in the same unit. The majority stated, “In order for employees to enjoy the full prospect of effective representation, the Act contemplates that employees be grouped together by common interests and by a common employer.  The non-consensual mixing of employees of different employers vitiates that basic principle.”