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Union Representation of Temporary Employees Made Easier

Fall 2000

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

The National Labor Relations Board ("NLRB") recently reversed its long-standing precedent and made it easier for unions to organize and represent combined units of temporary and regular employees. In M.B. Sturgis and Jeffboat Division, et al., 331 NLRB No. 173 (August 25, 2000) the NLRB stated that temporary employees jointly employed by a staffing agency and its customer can be included for representation purposes in the same bargaining unit as the customer's regular employees if the two groups share a community of interest.

Previously, the NLRB would only recognize as appropriate a bargaining unit composed of temporary and regular employees with the consent of affected employers, i.e., the staffing company and its customer. Now, regardless of consent, the NLRB will treat as appropriate a unit composed of temporary and regular workers who are deemed employees of both and share common supervision and working conditions. Under such circumstances, following a vote by the majority of the regular and temporary employees in the bargaining unit in favor of union representation, the temporary employees may be required to be part of the unionized unit, even if, for example, all of the assigned temporary employees voted against union representation. Then both the staffing company and its customer would be compelled to negotiate with the union over the jointly employed employees. Many significant questions concerning the mechanisms of such negotiation remain unresolved.

We expect that this decision will likely increase union organizing activity, particularly among temporary employees.

The staffing company and its customers can work together to minimize the effect of this decision by structuring operations to minimize the likelihood that they will be deemed joint employers. Under existing law, the staffing company and its customers are likely to be deemed joint employers if both share responsibility for determining the terms and conditions of the employees' employment. For example, if the staffing company assigned an employee on-site to supervise the temporary employees, the risks of joint employer status and combined regular temporary employee unit would be minimized.

Similarly, the staffing company and its customers can work together to minimize the likelihood that the Board will find a community of interest between the customer's regular and temporary employees. For example, assigning temporary employees for shorter-term and finite assignments may help thwart unionization of both groups of employees.

Questions regarding this article can be directed to any member of our Labor & Employment Practice Group.

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