NLRB Decision Will Significantly Help Organizing Temporary/Agency Employees
July 15, 2016 by Sheila Sexton
It has become more and more common over the last 25 years: An employer contracts with an agency for temporary workers to work alongside its regular employees, performing the exact same work. Often the only difference between the workers is the name of the company on the paycheck (or the wages in the check). However, the legal standards applied by the NLRB since 1990 have made it very difficult to organize the temporary employees. That is no longer the case. In its decision in Miller & Anderson, Inc. and Tradesmen Int’l v. Sheet Metal Workers Int’l Assn, Local Union No. 19 (July 11, 2016), 364 NLRB No. 39, the NLRB overturned impediments to organizing temporary workers imposed during the Bush years.
The old rule required both the temporary agency (or “supplier”) employer and the so-called “user” employer to consent to a multi-employer bargaining unit comprised of both the temporary agency employees and the user employer’s employees. Because neither employer had any incentive to give consent, Unions have been forced to organize the “user” employer’s workers and the “supplier” (agency) employees separately.
In Miller & Anderson, however, the NLRB rejected the requirement of employer-consent to a unit comprised of the temporary agency employees and the regular employees and instead affirmed the employees’ right to collectively bargain regardless of their paychecks issuing from different employers. Of course, such a multi-employer unit will require a finding that the user and supplier employees share a community of interest (meaning that they share many terms and conditions of employment, have common supervision, and interact in the workplace). This threshold will not be difficult to meet in the common situation where the temporary agency has no role in the workplace and only supplies the workers who perform the same work as the regular employees under common supervision.
Many of you will recall last year’s NLRB decision finding that BFI and a temporary agency were joint employers of a group of recycle workers that Local 350 was seeking to represent. The Miller & Anderson decision goes one step further in giving Unions increased flexibility in organizing and protecting units against erosion through subcontracting and continues the current Board’s recognition of the Act’s fundamental purpose of enabling collective bargaining.
If Unions act on this decision by filing petitions to represent such multi-employer units, the long-term ramification could be a reduction of the use of temporary agency employees.
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