Taryn Phaneuf Jul. 26, 2016, 11:33am


CHAMBERSBURG — With more employers using contingent workers, including temporary and part-time staff, a new labor relations decision broadens a collective bargaining rule that makes it easier for these increasingly common alternative workforces to organize.

The National Labor Relations Board overturned more than a decade’s worth of precedent by concluding that employer consent isn’t required for a proposed bargaining unit made up of workers employed solely by a user company and contingent workers employed jointly by a supply company as well as the user company.

Miller & Anderson, a mechanical contract services company based in Clearbrook, Va., hired contingent sheet metal workers from Tradesmen International for a project in Franklin County. 

Those workers joined a group of workers employed directly by Miller & Anderson. Sheet Metal Workers International Association, Local Union No. 19, petitioned to represent a bargaining unit made up of both sets of employees. 

NLRB rules dictated that such a multi-employer unit required consent by both the user employer (which is Miller & Anderson in this case) and the supply employer (which is Tradesmen International). The employers didn’t consent to the combined unit, so the NLRB regional director rejected the petition. The union asked the NLRB to review the regional director’s decision in May 2015.

The regional director’s decision was based on NLRB precedent established in 2004, known as Oakwood Care Center. The NLRB determined employer consent is required for multi-employer units because of the potential for conflict between employers and sets of employees. 

However, in 2000, the NLRB concluded the opposite: consent is not required in multi-employer units. That case was known as M.B. Sturgis, Inc.

In its July 11 decision, the NLRB opted to overrule the Oakwood precedent in favor of the earlier Sturgis decision. 

While some labor advocates see this as a good move, businesses see it as a loss to the flexibility that they say is a critical element in fast-paced industries that have tried to shed the slow decision-making process of collective bargaining, James Stone, a Cleveland attorney at Jackson Lewis with more than 25 years of experience in labor and employment law, told the Pennsylvania Record

With less lead time on orders due to what he calls the “Amazon effect,” businesses are afraid they’ll lose out to their competition because of the time it takes to negotiate in an inherently time-consuming way, simply because of the number of people involved in the process.

“The concern is we need flexibility. We don’t have time to sit around bargaining contracts,” Stone said. “You have to bargain everything in good faith and that takes a ton of time. We’re going to be here bargaining a new contract; meanwhile, competitors are going to clean our clocks.”

Stone thinks the decision will lead businesses to take another look at why they use contingent workers and whether such workers still offer the same benefit in light of the new decision.

“I think they’ll have to re-examine their use of contingent workforce,” Stone said. “They still provide a lot of benefits — especially for those with fluctuating need. The distinction won’t matter much any more. If you’re using contingent workers the way most people use them, they could very well be in the same —  they could still be organized employees. 

"You’re going to have to look at them more as your regular workforce. If you’re using contingent workers because … somehow this is going to discourage unionization, that’s no longer the case.”

In its discussion of the case, the NLRB pointed to its mandate to remove barriers to collective bargaining for workers.

“Anyone familiar with the (National Labor Relations Act’s) history might well wonder why employees must obtain the consent of their employers in order to bargain collectively. After all, Congress passed the act to compel employers to recognize and bargain with the designated representatives of appropriate units of employees, even if the employers would prefer not to do so,” the decision states.

The board went on to say that Sturgis more adequately fits the mission of the board because it allows the workers to determine the boundaries of the unit — a right known as “self-organization.”

“The Sturgis approach honors that principle because it does not require employees to obtain employer permission before they may organize in their desired unit. Nor does Sturgis mandate any particular bargaining unit for the contingent employees (who are jointly employed by a user employer and a supplier employer) and the employees solely employed by that same user employer,” the decision states. “Rather, Sturgis leaves the employees free to choose the unit they wish to organize, provided their desired unit is appropriate under the board’s traditional test for determining unit appropriateness.”

The NLRB doesn’t hide the fact that it encourages collective bargaining, which is commonly viewed as helping unions, not businesses. But while he disagrees with the decision, Stone said the NLRB’s decision is in response to a changing workplace that includes a lot more contingent workers, so he can understand the rationale.

“In the old days, this was kind of a rare thing. Now it’s a really big group,” he said.

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