Dive Brief:
- In a 3-1 decision, the National Labor Relations Board (NLRB) returned to a past rule that means unions no longer need consent to represent employees in bargaining units that combine both solely and jointly employed employees (the latter usually being temporary workers) of a single user employer.
- Bottom line, the NLRB now makes it easier for unions to organize temp workers on the same level as permanent workers, in a single process.
- The NLRB decision means an employer using temp workers will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. However, it will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control, said the NLRB in a statement.
Dive Insight:
According to Politico, the NLRB decision overturned a George W. Bush-era decision, Oakwood Care, that banned unions from petitioning the NLRB to allow temp and permanent workers in a single bargaining unit if the employer did not consent. With the ruling, unions may represent a "mixed unit" provided the primary employer is a joint employer alongside the company that provides its temporary staff.
Politico also reports that the decision restores a standard previously set by the Clinton-era NLRB, but with "added potency" after the 2015 decision in Browning-Ferris Industries, which expanded the definition of "joint employer." That decision holds large employers more accountable for the employment practices of subcontractors, franchisees and staffing agencies.
When you combine the effects of Browning-Ferris and Miller & Anderson, Politico said, employers will more often be judged joint employers that must contend with "a single, larger, and more powerful potential bargaining unit consisting of both temporary and permanent workers."
This issue is of particular importance to employers as the size and clout of the contingent/temp workforce continues to grow. Such workforces are becoming more outspoken due to more employers depending on them to fill talent gaps, meaning this rule will likely have a powerful effect.
