Is the NLRB poised to allow temporary workers to vote in union elections?
If you had been following our recent articles, you know that the National Labor Relations Board (NLRB) has been aggressively changing the rules on union elections and overturning many established decisions on employment policies and social media alike.
On May 18, 2015 the NLRB signaled that it may now look to expand the rights of temporary employees to vote in union elections of the company to which they have been assigned. In a pending case before the NLRB,Miller and Anderson, the NLRB invited interested parties to file amicus (friend of the court) briefs on the issue of whether the Board’s decision inOakwood Care Center issued in 2004 should be modified or overturned.
In Oakwood Care Center, the NLRB held that a bargaining unit consisting of the company’s permanent employees and temporary employees would only be appropriate if both the permanent employer and the temporary agency consented to the multi-employer bargaining unit. In other words, the NLRB has consistently held over the last decade that temporary workers are not permitted to participate in the bargaining unit at the host employer unless both the host employer and the temporary agency consented to such an arrangement.
In the case now pending before the NLRB, the regional director dismissed a petition filed by the Sheet Metal Workers Union seeking to represent all of the permanent sheet metal workers of Miller and Anderson as well as temporary employees from a temporary agency which was providing services to Miller and Anderson. This seemed to be a fairly routine dismissal. However, by soliciting amicus briefs, the NLRB has signaled that it is prepared to re-visit that issue and perhaps allow temporary workers to participate in the certification process and collective bargaining process with the permanent employees of the host employer.
Recent experience tells us that the NLRB does not invite amicus brief unless it is prepared to modify or overrule some long standing case. The implications of this decision could be profound, as many American companies today are using temporary agencies and workers to manage the peaks and valleys of staffing. We will continue to keep you advised of developments in this area.
If you have any questions regarding compliance with the NLRA, please contact Jeffrey M. Embleton, Amy L. Kullik, James A. Budzik or Ann E. Knuth in our Labor and Employment Group at Mansour Gavin LPA at (216) 523-1500.
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