The National Labor Relations Board (NLRB) has ruled that collective bargaining units may consist of regular employees (those employed directly by the “User Employer”) and workers performing services at the User Employer’s workplace who are employed by independent third-party entities (the “Provider Employer”), even if neither employer consents to this arrangement.
The NLRB explained that a combined unit of this type will be found whenever it is determined that 1) the User Employer and Provider Employer jointly employ the contracted workers, and 2) the regular employees and contract workers share a sufficient community of interest to form an a bargaining unit deemed appropriate by the NLRB.
How Will This Work?
The NLRB decision noted that under such a combined bargaining unit, each entity will only have to bargain over the issues that are under their respective control. However, that is not always easy to determine, particularly since the very essence of a joint employment relationship implies joint control over many employment-related issues.
Moreover, ferreting out which employer will be responsible to bargain over specific terms and conditions for jointly employed workers is made more difficult by the NLRB’s revised joint employer standard, which provides that a User Employer may be deemed to jointly employ a contract worker if it retains a right to indirectly control the terms of employment of that contract worker. Ultimately, as NLRB Member Miscimarra stated in his dissenting opinion, this decision will almost certainly add complexity and inefficiency to the bargaining process, which is completely antithetical to the stated purpose of the National Labor Relations Act.
The decision is also problematic for all employers as it fails to account for the impact that such combined bargaining will have on the written contract between the User and Provider Employers, or upon the terms and conditions of contract employees moving from “covered” jobs to uncovered jobs.
Finally, this decision sets the stage for increased union organizing activity. In particular, it opens the door for unions to seek representation of established workforces (even those that had rejected unionization previously) by focusing their efforts on the temporary employees working at the same location, who hopefully will swing the vote in favor of the union.
Bottom Line
Employers using temporaries of subcontractors should review their service agreements to minimize direct or indirect control over the employment terms of contract workers.
In addition, where a bargaining unit is already present and non-union contract employees are also present in the workplace, employers should be on the lookout for organizing activity, and should be prepared to respond to a petition seeking to add unrepresented employees to the existing bargaining unit through a Unit Clarification (“UC”) petition.