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For years, it was just about impossible for unions to organize temporary workers. But in a recent reversal by the National Labor Relations Board, the nation’s expanding contingent workforce now may be carrying more bargaining weight. The five-member labor board in M.B. Sturgis, Inc., Case #14-RC-11572 reversed a 10-year-old case that had stymied union efforts to include temps in bargaining negotiations with management. In the 1990 case, Lee Hospital, 300 NLRB 947, the board ruled that a union could not represent temporary employees who had been hired from more than one temp agency. The board said such a bargaining unit involves multiple employers. In multi-employer situations, the board said, both the company and temp agencies had to agree to the inclusion of the contract workers — a nearly insurmountable obstacle for unions. In reversing Lee Hospital, the labor board wrote that temporary employees and the regular employees at Sturgis Inc.’s Missouri plant share a “community of interest.” The labor board noted that both groups work side by side manufacturing flexible gas hoses, perform the same work, and are subject to the same supervision. “We find today that Lee Hospital was incorrectly decided. Plainly stated, we conclude that Lee Hospital did not involve multi-employer bargaining and no consent is required. We find that the [bargaining] unit composed of employees who are jointly employed by a user employer and a supplier employer, and employees who are solely employed by the user employer, is permissible under the statute without the consent of the employers.” The decision means that U.S. temporary workers hired by one company from a variety of temp agencies can unite with permanent employees to fight for better pay or benefits. “It’s a very important step,” said Jon Hiatt, general counsel at the AFL-CIO, which has made it no secret that temporary workers could boost union membership. “It doesn’t solve all the problems of the contingent workforce, but it’s certainly a very important decision for millions of temporary agency workers. Temporary workers have been treated as second-class citizens.” The temporary help industry makes up 4.3 percent of the nation’s workforce, or 5.6 million workers. About 800,000 of those are employed for contract firms. The contingent workforce increased 577 percent from 1982 to 1998, the NLRB’s most recent statistics from February 1999 show. “As a consequence of this error,” the board wrote, “a growing number of employees who are part of what is commonly described as the ‘contingent workforce’ are being effectively denied representational rights under the National Labor Relations Act.” Still, Hiatt doesn’t expect armies of temporary workers rushing to unions for bargaining leverage, though union organizers will certainly try to get them. “It’s not that this is going to open the flood gates. The main reason is because employers still have an arsenal to fight union attempts to organize,” Hiatt said. “In every industry there are varying degrees of interest and varying degrees of attempts to thwart organizing,” he added. TEMPS VS. PERMANENT WORKERS Sturgis is an example of how complicated relationships can be between union and management. In an attempt to dilute the union, Sturgis’ management tried to include about a dozen temporary employees in the bargaining unit, which was made up of about 35 permanent employees, who balked at the idea. But in a separate case that the labor board enveloped into its Sturgis decision, the motives were different. In Jeffboat Division, Case 9-UC-406, the local union of an Indiana shipbuilder wanted temporary employees included in its bargaining unit. Victor Schachter, a Fenwick & West employment defense attorney, said the decision sends a warning signal to employers that “you can’t treat contract or temporary workers with insensitivity.” And if employers do, they run the risk of contract workers organizing, even in industries without historical ties to unions, such as technology, where contract and temporary workers are common. Whether temporary employees deserve the same compensation as their permanent counterparts has in recent years been a hot labor topic. And last year, after nearly a decade of legal challenges by so-called “permatemp” workers at Microsoft Corp., the 9th U.S. Circuit Court of Appeals forced the technology giant to compensate about 10,000 temporary workers who were originally not allowed to join the company’s stock-purchase program. The ruling, which was denied certiorari by the U.S. Supreme Court, may have lasting implications for employers. Schachter and Hiatt agree that longer-term temporary workers will be most affected by the NLRB decision. Those who stay six months or longer on a job have a much greater chance of organizing than someone who fills in for a week or two, they say. “What we are seeing now is a whole new potential for organizing, the significance of which is yet to be seen. But clearly, this rejuvenates the interest of labor unions in organizing contract and temporary employees, in ways they never would have before,” said Schachter, who will be joining Fenwick & West’s employment group this month. Attorneys agree the labor board’s reversal is a recognition of socioeconomic changes in the country’s workplace, but politics may also have played a role in the board’s change of heart — since board members are picked by the president. With one new board member appointed each year, the board has changed its political leaning since Lee Hospital was decided, observed union attorney Stewart Weinberg, of Oakland’s Van Bourg, Weinberg, Roger and Rosenfeld. “Now we have a NLRB that is taking steps to undo the mess that Republican presidents have done to this,” Weinberg said. Considering this year’s presidential election, and “considering how the workforce is changing, they couldn’t have done it at a more important time,” he said.

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