As the National Labor Relations Board’s blockbuster Browning-Ferris decision nears its first anniversary, the agency issued a complementary ruling Monday making it easier for temp workers to unionize, a one-two combination punch that management-side lawyers fear will open primary employers up to workplace hazard and wage claims.
In a 3-1 decision, the board ditched a standard established in a decision called Oakwood Care Center that both the primary or “user” employer and a staffing supplier must consent before an election covering bargaining units of both temp workers and regular employees can be held.
Instead, the board returned to the standard it set in its 2000 M.B. Sturgis decision, which said bargaining units made up of solely and jointly employed workers didn’t require employers’ approval. The board’s reinstatement of Sturgis had been supported by labor unions, which urged the board to make the change, and opposed by business groups that filed amicus briefs seeking to maintain the Oakwood standard.
Meanwhile, McCarter & English LLP partner Hugh Murray says that avoiding unionization is not a primary reason that employers enter into business relationships with suppliers and staffing agencies.
“A bigger driver than unionization is other types of liability than joint employment, like wage-and-hour liability,” Murray said. “Very few employers have set up [business] arrangements to make it difficult [for workers] to unionize, although that may be an aftereffect.”