By now, it’s really not a big surprise when the NLRB reverse course on a prior decision. This week, the NLRB did it again. My colleague, Jarad Lucan, provides this quick update on temporary/contract employees being allowed to join unions. Read on.
In 2004 the National Labor Relations Board in its Oakwood Care Center case said that temporary and permanent workers must bargain separately unless the employer gives consent.
Yesterday, however, the NLRB overturned that precedent stating, “[b]y requiring employer consent, Oakwood has . . . allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”
Now, after a ruling in Miller & Anderson, temporary workers provided by staffing agencies do not need an employer’s permission to join unions that include its full-time employees as long as they share a “community of interest” with full-time workers.
In dissent, board member Philip Miscimarra said that along with the NLRB’s 2015 joint employer decision in Browning-Ferris Industries Inc, the NLRB’s latest ruling would create issues for companies that use contract labor and force many staffing firms to bargain with unions that represent the full-time workers of other companies.
As we have discussed previously, in Browning-Ferris, the NLRB said companies may be deemed joint employers of contract workers if they have the potential to control working conditions. Previously, the board required proof of actual, direct control.
With its latest decision, it could now be easier for workers found to be joint employees under the Browning-Ferris standard to unionize. Of course, the actual impact of both decisions still remains to be seen.
My former colleagues who write the Management Memo blog also shared this tip for employers as a result of the decision:
At a minimum, a detailed risk assessment of an employer’s workforce and its reliance upon its own employees and temporaries, leased and contract labor employed and controlled, in whole or in part, by so-called supplier employers is in order. “User” employers should determine the goals and risks associated with a relationship and determine whether it is possible and/or desirable to attempt avoid a joint employer relationship or embrace it but attempt to control liability. Both “supplier” and “user” employers should look for contractual provisions regarding defining the relationship, including who controls and does not control certain aspects, indemnification provisions, provisions related to responses and responsibilities related to union organizing and collective bargaining and similar concerns. Experienced labor counsel should be consulted to assist in these issues.