Using Temps Just Got More Complicated

by Timothy F. Murphy

On Monday, the National Labor Relations Board (the “Board”) ruled – in a case referred to as Miller & Anderson – that unions can petition to represent solely employed employees and jointly employed workers in the same unit without the consent of the employers. As a result of Miller & Anderson, jointly employed temporary workers supplied by staffing agencies (the “supplier employer”) do not need a user employer’s permission to join unions that include the user employer’s full-time employees as long as the temporary workers share a “community of interest” with the full-time workers.

This decision reversed a 2004 Board ruling – in Oakwood Care Center – that held that temporary and permanent workers must bargain separately unless the employer agrees. In fairness, Oakwood Care Center reversed a 2000 case (Sturgis) that said the opposite. [The Board’s serial flip-flopping may be a topic for a future blog post.]

In dissent, board member Philip Miscimarra wrote that Miller & Anderson will create bargaining instability for companies with contingent workforces and force many staffing companies to bargain with unions that represent the full-time workers of other user companies.

Miller & Anderson is part of the ongoing effort by the Board to expand the “joint employer” doctrine and thereby expand the opportunities for unions to organize workers.

Take-Aways

It is no longer enough for companies who wish to remain union free to keep their own houses in order. Miller & Anderson makes the case for “user” employers to make it their business to know how their staffing agencies treat their workers too. The same holds true for staffing agencies so that union vulnerability can be assessed and addressed. In addition, both should attempt to avoid a joint employer relationship, if possible. Either way, “supplier” and “user” employers should take care to clarify who controls and does not control the terms of employment, who is on the hook for what and respective responsibilities for union organizing and collective bargaining.

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