In another important decision for employers who jointly employ temporary workers provided by a personnel staffing agency, a 3-2 Board majority has held that the employer and agency must both consent before an election can be conducted in a unit comprising the employer’s regular employees and any jointly employed temps. H.S. CARE L.L.C., d/b/a Oakwood Care Center, 343 NLRB No. 76 (11/19/04). The decision overturns M.B. Sturgis, Inc., 331 NLRB 1298, which the Board decided in 2000.
Faced with rapid technological change and competitive market pressures, many companies supplement their regular workforce with employees supplied by a temporary help agency in order to reduce labor costs. Typically, the wages and benefits paid to the temporary workers are controlled by the agency, while their work assignments and supervision are the responsibility of the "user" employer. This arrangement may put the agency and employer in a joint-employer status with respect to the supplied workers (under Board law, joint employers share or codetermine matters governing essential terms and conditions of employment) and can create problems when a union seeks to represent the user employer’s "employees." Can the union represent a unit of regular employees and the jointly employed temporary workers? If the union already represents a unit of regular employees, can it accrete the temporary workers into that unit?
The Board had most recently answered these questions in Sturgis, holding that bargaining units that (a) combine employees solely employed by the user employer with (b) temporary workers jointly employed by the user employer and supplier agency are permissible under the Act. Sturgis jettisoned longstanding prior precedent which had permitted such units only with the consent of both employers. After Sturgis such consent was no longer required, and a unit would be found appropriate if the jointly employed workers shared a community of interest with the solely employed employees (e.g., worked side-by-side at the same facility under the same supervision with common working conditions).
Following the election of President Bush in 2000, the composition of the Board changed and with it the view of a majority of its members regarding the wisdom of Sturgis. Thus, upon review of a recent Regional Director’s decision approving a petition by the S.E.I.U. to represent employees solely employed by Oakwood Care Center and workers jointly employed by the Center and a personnel staffing agency, a majority of the current Board overruled Sturgis and returned to prior law that such a unit may be appropriate only with the consent of all parties.
Essentially, the Oakwood majority (Chairman Robert Battista and members Peter Schaumber and Ronald Meisburg) concluded that solely employed workers and jointly employed workers are employees of different employers, and that their inclusion in the same bargaining unit creates a multiemployer unit that is permissible only with the parties’ consent to enter into bargaining on a multiemployer basis. "Sturgis, however well intentioned, was misguided both as a matter of statutory interpretation and sound national labor policy," said the majority. Board member Wilma Liebman, who had participated in the Sturgis decision, dissented along with member Dennis Walsh, noting that the majority "seems to have gone out of its way to make it impossible for joint employees to exercise their Section 7 rights [to choose union representation] effectively." Without regard to the merit of that claim, it seems fair to say that unions will now find it more difficult to organize or represent agency temps.
If you have questions about union representation of agency temporary workers, or about NLRB matters generally, please contact Jim Petrie or any other Vedder Price attorney with whom you have worked.
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