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.”

Alex Ding is a Sum­mer 2016 edi­to­r­i­al intern.
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