The thought that a temporary worker could become a member of a union or union organizing attempt should strike fear into the heart of employers and be a cause of rejoicing for many unions. It may provide a way for unions to bolster their membership numbers.
NLRB reverses a previous decision
In a 2004 case the NLRB said that temporary workers could not be members of a union at the place of business where they were preforming services. After all they were employees of a different company than the company that was organized. That decision in 2004, called the Oakwood Care Center decision, held that because two employers were involved both employers would have to consent to the temporary workers being members of the bargaining unit. Unfortunately, in a recent case, Miller & Anderson, the Board reversed this previous decision and allowed that “workers supplied by a temporary staffing agency to a single employer may be included in a bargaining unit with permanent employees despite the fact that they are employed by a single, separate employer” according to the law firm Smith, Gambrell and Russell, LLP.
Community of Interests
The Board said that the range of community of interests need to be examined to determine if these temporary employees should be included. These interests include:
- whether the employees work side-by-side at the same facility,
- whether they are under the same supervision,
- whether they perform similar work,
- whether there is significant contact or interchange, and
- whether they share common working conditions.
If this community of interests exists then the temporary workers can be solicited to join and will be able to join without the permission of either employer. This certainly can cause a great deal of problems for the two employers determining who has what responsibility in dealing with these employees.
What to do
Smith, Gambrell & Russell suggest that employers using contingent workers review their contracts with the company supplying that labor to insure that such a community of interests do not exist. If it does exist then the contract needs to state what the responsibilities of each party are in the relationship.