NLRB Looks at Facilitating Unionization of Temporary Workers

By Allen Smith Jun 22, 2015

The National Labor Relations Board (NLRB) has signaled that it is reconsidering the authority of a board decision made under President George W. Bush’s administration that made it difficult for temporary employees to unionize with a company’s permanent employees (Oakwood Care Center, 343 NLRB 659 (2004)).

There could be an “exponential effect” on union organizing if the NLRB no longer follows Oakwood, Donald Schroeder, an attorney with Mintz Levin in Boston, told SHRM Online.

The Oakwood decision is one of many past decisions that labor and management attorneys have long expected the board would target under President Barack Obama’s administration.

The board has invited the filing of briefs to address the multiemployer issues raised in Miller & Anderson, Case 05-RC-079249, where an administrative law judge applied Oakwood. The Sheet Metal Workers’ International Association, Local Union No. 19, questioned the applicability of Oakwood in a 2012 request for review. The board’s responding request for briefs on May 18, 2015, is a sign that the board is considering abandoning Oakwood.

Flip-Flopping Board

Under Oakwood, a unit consisting of workers employed by a single employer and temporary workers by a joint employer is a multiemployer bargaining unit and appropriate only if all employers consent.

In Miller & Anderson, the employer, Miller & Anderson Inc. (a mechanical and electrical contractor based in Clear Brook, Va.), and staffing agency, Tradesmen International (a nationwide construction recruiter and construction employer that supplies contractors with temporary employees), did not consent to multiemployer bargaining.

Oakwood overturned a board ruling from the President Bill Clinton-era board, M.B. Sturgis Inc., 331 NLRB 1298 (2000). In Sturgis, the board ruled that “separating ‘regular’ employees—i.e., those solely employed—from the ‘temporaries’ who may (as in the instant cases) share the same classifications, skills, duties and supervision, creates an artificial division that is not required by the statute.” The Sturgis board went on to state “That a unit of all of the user’s employees, both those solely employed by the user and those jointly employed by the user and the supplier, is an ‘employer unit’ within the meaning of Section 9(b) [of the National Labor Relations Act] is logical and consistent with precedent. The scope of a bargaining unit is delineated by the work being performed for a particular employer.”

Echoing the reasoning behind Sturgis, the dissenting board members in Oakwood said, “Where one or more supplier employers provides employees to a single-user employer at a common worksite, all of the employees at the site work for the user employer. … Hence, the unit scope is employerwide. Surely, employees who are working side by side, for employers who have voluntarily created that arrangement, should be able to join together in the same bargaining unit, if they choose to. They are part of a common enterprise and, absent a common union representative, they are potential competitors with each other with respect to the terms and conditions of their work” (emphasis in original).

“A lot of people think that the board is poised to go back to Sturgis,” Schroeder said, noting that the flip-flopping of doctrines at the board is nothing new as presidential appointees are replaced under succeeding presidential administrations.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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