NLRB: Unions may organize permanent and temporary workers without employers' consent

By Rebecca Bernhard,

7/14/2016

In a decision that will affect staffing companies and the employers that use them, the National Labor Relations Board (“NLRB”) has smoothed the path for unions that seek to organize and represent permanent and temporary employees working at the same worksite.

The July 11, 2016, decision overturns an eight-year-old rule that had required all employers with employees at a particular worksite to agree before a union could represent their workers as one bargaining unit.  Under the new rule, unions may secure a workplace election to decide if a proposed bargaining unit meets the shared-interest standards applied to proposed bargaining units in all workplaces, regardless of whether the proposed unit includes workers employed by different employers.

The dispute began in 2012, when a union sought to represent a bargaining unit made up of two groups of sheet-metal workers – those who were directly employed by a Pennsylvania manufacturer (the “user employer”) and those who were employed by a different company (the “supplier employer”) but were assigned to work at the manufacturer.  The regional office rejected the union’s attempt to organize both groups of employees together, deciding that a rule adopted by the Board in 2004 required the consent of both employers for the election to proceed.  The July 11 decision of the NLRB overruled the regional office, overturned the 2004 rule, and directed that the union could proceed with the election.

Going forward, user employers should keep in mind:

*The importance of engaging reputable and experienced staffing companies.

*The value of strong communication with supplier-employer partners.  Under the new rule, it is more likely that user employers and supplier employers will be bargaining partners when dealing with unions.  Discord between the employers could give unions “divide and conquer” leverage.

Supplier employers should be mindful of:

*The need for consistent, frequent and clear communication with their clients on possible union issues.

*The fact that some industries (health care, production, janitorial, drivers) are more likely than others to be identified for union organizing.

*The value of strong communication with user-employer partners, to avoid the sort of discord that could give unions “divide and conquer” leverage.

And supplier and user employers both should consider:

*Union representation elections now are held under the accelerated rules adopted in 2014 – meaning joint-employer issues will need to be identified and addressed promptly if a union files a petition for election.

The recent decision reflects how the political makeup of the NLRB – the majority of which is appointed by the sitting president – can create uncertainty for employers evaluating how to respond to union petitions for election: This week’s decision overturned a decision issued in 2004 by a Board with a Republican Party majority – which in turn had overturned a decision issued only four years earlier, in 2000, by a Board with a Democratic Party majority.

The case is Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), and is available here.  Several labor unions and commercial and industry groups, including the U.S. Chamber of Commerce and the American Staffing Association, filed legal arguments with the NLRB prior to its decision.