In a decision which one of its own members felt would destabilize labor relations and the collective bargaining process, the National Labor Relations Board (NLRB) has ruled that an attempt to form bargaining units that combine both solely and jointly employed employees of a single user employer, no longer requires the consent of any employer. This ruling sets aside the NLRB’s 2004 Oakwood Care Center decision (343 NLRB 659), which proposed that a unit comprised of the employees of a “supplier” employer (such as a leasing or temporary agency) and those of a “user” employer was not an appropriate unit for collective bargaining purposes, unless both the employers provide their consent.
Now, in a 3-1 decision, the Board held that a proposed bargaining unit that combines employees solely employed by the user entity with those jointly employed by the supplier and user entities is an appropriate unit for election and collective bargaining purposes, even without the consent of both employers, so long as the employees within the proposed unit meet the Board’s traditional community-of-interest test.
Traditionally, the NLRB has applied the “community-of-interest” test, which considers:
The NLRB’s decision follows its ruling in August 2015 with regard to Browning Ferris Industries, saying companies who use temp workers are considered joint employers of those workers and share responsibility with the temp agencies for liabilities regarding those workers. The Board’s decision impacts not only staffing agencies, employee leasing companies and providers of temporary employees, but also companies that use leased or temporary employees in its operations. But the Board has made sure that contingent workers are not left with issues to which they have no resolution, and no one to champion their cause.
The new rule makes it easier for unions to simultaneously represent both the permanent employees of a company and workers from staffing agencies. Now the decision to form a union depends solely on the interest of the members in the community’s goals, and need not take the opinion of either the employer or the staffing agency (which deputed the temporary worker to work with the employer), and is legally considered to be the employer for that temporary worker.
Employers who make diverse employment arrangements for their workforces may find that they need some adjusting to this new reality when considering collective bargaining and existing contractual clauses. The divergence in the interests of permanent employees and external employees could render labor disputes complex and long drawn out negotiations, which make a speedy resolution difficult, if not impossible. Both employers and staffing agencies will need to prepare and plan for possible organizing activities among their workers and external labor.
Employers need to bargain over all terms and conditions of employment for those employees who are solely employed by them. In addition, they would be obligated to bargain over the terms and conditions of employment which it has the authority to control for those employees it jointly employs with the supplier entity.
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