Unionizing Temp Workers made easier

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Barran Liebman
Oregon Law Firm

Unionizing Temporary Workers Easier After Recent NLRB Ruling
By Tyler Volm

Earlier this week, the National Labor Relations Board (“NLRB”) issued a 3-1 decision that made it easier for Unions to organize a workforce made up of both regular and temporary employees. Under the prior ruling, the main employer and a staffing agency both had to consent before an election covering a combined bargaining unit of regular and temporary employees could take place. Under the new standard, a Union seeking to represent employees in bargaining units that combine both categories of employees is no longer required to obtain employer consent, and the NLRB will apply the traditional community of interest factors for determining the appropriateness of the composite unit.

If the members of the proposed bargaining unit are found to share a community of interest, they will be deemed an appropriate bargaining unit. If that bargaining unit votes for Union representation, it will require the employer to bargain with a much larger swath of the workforce regarding their terms and conditions of employment. However, an employer will only be obligated to bargain over the jointly-employed workers’ terms and conditions of employment for those employees over which it “possesses the authority to control”, arguably leaving the scope of the ruling open to subsequent interpretation.

This recent ruling overturned a 2004 decision, which held that solely employed and jointly employed workers could not be in the same bargaining unit without employer consent, but this 2004 decision overturned a decision from 2000, known as the Sturgis rule. Under that rule from 2000, employer consent was not required if the temporary employees from a staffing agency could be included in the same unit with traditional workers if they shared an adequate “community of interest.” The dissenting board member in this week’s case argued that the majority ruling substantially enlarged the expanded joint-employer platform promulgated by the NLRB in the 2014 case of Browning-Ferris.

This return to the Sturgis rule, and the ever-increasing scope of joint employer liability under NLRB decisions, requires employers to carefully consider which, if any, positions it chooses to fill with temporary employees.