- within Compliance topic(s)
Originally appeared in Labor and Employment Newsletter - February 2002
In Tree of Life, Inc. d/b/a Gourmet Award Foods Northeast, 336 N.L.R.B. No. 77 (Oct. 1, 2001), the National Labor Relations ("NLRB") Board ruled 2-1 that a gourmet foods distributor committed an unfair labor practice by failing to apply the terms of a collective bargaining agreement to temporary employees supplied by four staffing firms.
Joint Employer Status
The union represented a unit of 80-90 drivers and warehouse workers. Without objection, the company regularly hired temporary employees, typically for fewer than 30 days, during peak business periods. When the company informed the union in October 1998 that it intended to hire temporary employees for up to five months, the union responded that employees hired for more than 30 days were covered by the bargaining agreement and its 30-day union security clause.
An administrative law judge ("ALJ") concluded that the company was a joint employer with the staffing firms and violated the National Labor Relations Act by refusing to apply all the terms of the bargaining agreement to the temporary employees. The NLRB concurred with the ALJ’s joint employer finding and also held that the company violated the NLRA. The majority concluded that the temporary employees were encompassed by the unit’s broad definition of "drivers and warehousemen" under the bargaining agreement. The majority reasoned that the agreement set forth no limitations on the scope of the unit and, accordingly, the employer’s decision to hire temporary employees into that job classification compelled their inclusion in the unit.
NLRB Modification
However, the NLRB modified the ALJ’s recommended remedy that the company be required to apply all terms of the bargaining agreement to the temporary employees. The majority instead ruled that the company was obligated to apply the contract provisions to the temporary employees only as to the working conditions the company controlled, and that any issues regarding the company’s control over specific working conditions governed by the contract would be resolved at the compliance stage of the proceeding. The dissent noted that temporary employees historically have not been included in a represented unit and objected to the placement of such employees in a unit and incorporating them in the bargaining agreement without their consent.
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