NLRB Expands Ability of Temp Workers to Organize

The NRLB has done away with the employer consent requirement.
The NRLB has done away with the employer consent requirement.

Following on the heels of last year’s expansive Browning-Ferris decision that redefined the joint-employer standard, the National Labor Relations Board (NLRB) has now issued a decision that multiplies the problem for employers with temporary/contingent workers. In Miller & Anderson, Inc., the NLRB overturned long-established precedent to hold that temporary workers supplied by a staffing agency may be put in the same bargaining unit as a company’s regular employees, without the consent of both employers.

In the past, if an employer, for instance, a soda manufacturer, had both direct and temporary workers, a union would have to get permission from both the soda manufacturing company and the temp agency before it could organize the regular employees and the temporary employees into a single bargaining unit. Now, the NLRB has done away with the employer consent requirement.

As The Wall Street Journal noted (subscription required), “firms that use temp agencies or subcontractors (e.g., cleaning, security, hospitality) could be required to collectively bargain with workers that they use only for short durations. Even after the temp workers leave, the company is stuck with the union and its labor contract.”

The dissent pointed out the uncertainty that employers now face: the expansive decision “will only make it more difficult for parties to anticipate whether, when or where this new type of multi-employer/non-employer bargaining will be required.”

The decision will make it easier for unions to organize workplaces that use a lot of temporary workers. Employers with significant contingent workforces may wish to consult with legal counsel on the impact of this decision.

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