In Historic NLRB Ruling, Temps Win the Right To Join Unions

Alex Ding

The NLRB has weighed in on the joint employer question, ruling that bosses need not consent for temps to unionize in mixed bargaining units (Phil Dowsing Creative / Flickr)

A new ruling will enable temporary and permanent employees to come together to negotiate with their bosses in mixed bargaining units.

The National Labor Relations Board on Monday overturned a Bush-era standard that said a union could only organize a bargaining unit of jointly employed and regular employees if both employers consented — even if those employees worked together closely. Jointly employed” includes temps who are hired through staffing agencies. 

The new decision allows jointly employed temps to bargain collectively in the same unit with the solely employed workers they work alongside, ruling that bosses need not consent so long as workers share a community of interest.”

In a 3 – 1 decision, the Board overturned a 12-year-old ruling in Oakwood Care Center, where the Board said that a group of temporary workers could not unionize with permanent employees without the approval of their employer and the appropriate staffing agency. 

In this new ruling from Miller & Anderson, Inc., the Board returns to a standard set in 2000, during the Clinton administration, in a case called M.B. Sturgis, Inc., which was overruled in Oakwood.

Under Sturgis, and now Miller & Anderson, permanent and jointly employed workers can negotiate in the same unit if they are employed by the same primary employer, and if they share a community of interest.”

In a statement announcing the ruling, the NLRB said, requiring employer consent to an otherwise appropriate bargaining unit desired by employees, Oakwood has … allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”

What the ruling means

The ruling represents a blow to corporations that have moved forcefully, sometimes overwhelmingly, toward using temporary workers in an effort to block worker benefits and collective bargaining.

Pro-corporate entities like the U.S. Chamber of Commerce and the American Staffing Association (ASA) weighed in on the case last year, calling for the Board to uphold to the Oakwood standard and leave intact the employer consent requisite. 

In an amicus statement, the ASA wrote, Were the board to revert, [it would] … sow uncertainty and conflict.”

For labor and working people, the ruling represents an exciting precedent from the board. The ruling makes it more challenging for employers to avoid labor contracts by using temporary services and removes some obstacles for workers in negotiating effectively with their bosses.

The AFL-CIO, SEIU and the NLRB general counsel supported a return to Sturgis. Warehouse Workers for Justice, a worker center in Chicago, described the decision as a win for all warehouse workers.”

NLRB counsel Amy Cocuzza, in her brief for Miller & Anderson, affirmed that in matters of collective bargaining, The employers’ consent, or lack thereof, should not be a consideration.”

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Alex Ding is a Summer 2016 editorial intern.
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