NLRB’s
August 27, 2015 decision in Case 32-RC-109684, Browning-Ferris and Sanitary Truck Drivers Local 350, puts every
employer hiring workers from temporary labor agencies on notice that even day
labor has broad rights to organize and bargain collectively with the business
owners who “lease” them from temp providers. Reversing more than 30 years of
labor law precedent limiting the opportunities for collective bargaining by
workers employed in day labor agencies, a majority of the Board ruled that
those older opinions are “increasingly out of step with changing economic
circumstances, particularly the recent dramatic growth in contingent employment
relationships.” The majority opinion seeks to “put the Board’s joint-employer
standard on a clearer and stronger analytical foundation … to best serve the
Federal policy of ‘encouraging the practice and procedure of collective
bargaining.’”
In
other words, businesses in the construction industry and other segments of the
economy who may have union contracts with a skilled labor force, but use
temporary labor agencies to supply less skilled workers on a day to day basis
as workloads fluctuate, will face renewed union efforts to organize the day
laborers who report to work at their plants and project sites. The last 30 plus
years of NLRB precedents have made it difficult for union organizers to
establish that plant operators and construction contractors were joint employers
of the day labor workers, forcing unions to organize and bargain only with the
temp agencies. Under this new ruling, the companies putting agency employees to
work from time to time can be the “employers” compelled to bargain collectively
with the unions representing their temporary workers.
The
case arose at a BFI recyclable sorting facility, where BFI directly employed
operating engineers, spotters and other union workers outside the sorting
facility to move materials as they arrived and prepare them for sorting, but
used temporary workers supplied by temp agency Leadpoint Business Services to
man the sorting lines within the plant as the workload might require. Local 350
sought to organize 240 full time, part time and on call sorters, screen
cleaners and housekeepers to bargain collectively with BFI over wage rates,
work hours and plant operating conditions. BFI Argued that, under the last 30 plus
years of NLRB decisions, Leadpoint was the sole employer of the temporary
workers, and BFI could not be compelled to bargain collectively with them.
The
temporary labor contracts between BFI and Leadpoint were worded to take maximum
advantage of earlier NLRB rulings. But, citing work factors controlled by BFI,
including sorting line operating speeds, productivity standards, break times,
safety, and mandatory overtime, the Board determined that, under its new,
broader interpretation of “joint employer” status, the union could compel BFI,
rather than only Leadpoint, to sit at the negotiating table with Local 350.
Whether
or not your construction business currently has any union labor agreements in
place, if you use workers from temp agencies on your project sites, or in your
plant or office, you can expect to see union organizing efforts and bargaining
initiatives for the temporary work force aimed at your business in the near
future.
