NLRB Rules Temp Workers Can Join Unions

The National Labor Relations Board (NLRB) has ruled that temporary workers may vote for, and be included in, the same collective bargaining units as full-time employees without the consent of the temporary agency or the employer. [M.B. Sturgis, Inc., 331 NLRB 173] Both labor union and business management officials expect the decision to facilitate union organizing among the United States' 5.6 million temporary workers.

According to industry sources, some solid waste companies with unionized employees already are feeling the decision's impacts. Several of these companies are negotiating preemptively with their employees' unions, to find an appropriate response to the decision.

The case leading to this decision involved two separate union petitions - one at a Missouri gas hose manufacturing plant and one at an Indiana shipyard. In Missouri, the employer wanted 10 to 15 of its temporary employees to be included in the union, but the union opposed the workers' inclusion. Conversely, in Indiana, the local union sought to add 30 temporary welders to a bargaining unit of 600 employees, but the employer objected.

However, because each case raised identical issues concerning the rights of so-called "joint employees" who come from temporary agencies and do the same work as other full-time employees, the NLRB consolidated the two cases.

Prior NLRB decisions have held that temporary employees are joint employees who cannot be included in a union. But in a 3-to-1 decision, the NLRB ruled that employees of temporary agencies may vote for and be included in the same collective bargaining units as their customers' regular employees.

Until now multi-employer bargaining has required the mutual consent of both employers, but this decision overrules a 1990 decision and a 1973 decision involving multiple employers and temporary workers.

In its M.B. Sturgis analysis, the NLRB used a "community of interest test" to determine whether the temporary employees involved had enough mutual interest in wages, scheduling and working conditions to form a collective bargaining unit. The NLRB found that temporary employees at the Missouri and Indiana facilities shared enough interests with "regular" employees to merit the "joint employee" classification. For this reason, the NLRB concluded the proposed units do not constitute multi-employer units requiring both employers' consent.

In his dissent, Judge J. Robert Brame argued that the reversal of several decades of NLRB precedent is improper. As a result of this decision, he said, employers will be forced into collective bargaining with another employer's employees.

In the interest of facilitating union organizing in the modern workplace, Brame continued, this decision sacrifices the fundamental principle of commonality of interest.

By expanding union organizers' ability to add temporary employees to existing collective bargaining units, the decision also might eliminate or reduce many of the cost advantages of having temporary workers, according to business management officials.

AFL-CIO President John Sweeny calls the ruling "an important step" in addressing the rights of temporary workers and says employers should expect to receive new union petitions seeking to organize temporary employee bargaining units.