What to Do About the New Temp Voters in NLRB Elections
Temporary employees (“temps”) will now be eligible to vote in most NLRB elections held where they work. These new voters expose employers to a serious, new vulnerability to union organizing. The purpose of this article is to explain what has happened to the legal status of temps, and explore what to do about it.
What Has Happened.
On August 25, 2000, the NLRB rendered its decision in M.B. Sturgis, Inc. This NLRB ruling reverses decades of prior NLRB decisions on the subject of temps. The Board declared that employers may, now, be forced to include temps, with the employers' regular employees, in “appropriate units” for voting on union representation.
Many employers may ask, “how can workers who are not on my payroll be eligible to vote in an NLRB election with my employees?” The legal answer is that temps, assigned to your workplace, are your employees, even though they are not on your payroll.
The National Labor Relations Act (the “Act”), and many other laws, make an employer, who contracts for temps, a “joint employer” with the temporary help agency. This has been the law for a long time. In the past, however, the consent of both “joint employers” was required before the temps could be included in any “appropriate unit for collective bargaining” with the employer’s regular employees. The NLRB recognized this consent requirement in previous rulings, known as Greenhoot, Inc. (1973), and Lee Hospital (1990).
In M.B. Sturgis, the Board reverses Lee Hospital and “reinterprets” Greenhoot, in order to permit unions to organize temps as part of an employer's workforce. Temps will now have the right to vote on whether the employer, who is using their services, must recognize and bargain with a labor union.
Temps May Create A Gaping Hole In Your Union-Free “Armor.”
Due in no small measure to CUE’s leadership, many employers have spent the last two decades protecting their employees from labor union exploitation. Every CUE conference witnesses an evermore inventive display of glistening “armor” against union attacks. Wage and benefit packages have been carefully constructed to meet or exceed the compensation at unionized facilities. Creative employee involvement programs, gain sharing, peer review, employee grievance procedures, and/or other safeguards are in place to ensure fair treatment, compensation, and a voice in the workplace.
Yet, almost without exception, this union-free “armor” protects only those on the company’s payroll. Relying upon the legal protection of Greenhoot and Lee Hospital, employers have given little thought to union organizing among temps. The law has, now, changed. Temps may represent a gaping hole in your union-free armor. If not addressed, this hole may expose a “soft underbelly” of voters peculiarly vulnerable to union organizing attacks.
What To Do About Temps.
Employers must now readjust their union-free strategies to address the new voting status of temps. Appropriate steps will depend upon an employer’s degree of temp usage, both numerically and as a percentage the total workforce, as well as its corporate “culture” and other personnel issues. At a minimum, the following should be considered:
1. Realistic Assessment.
Begin with a realistic assessment of how your temps are likely to react to union organizing tactics. Temps often work side by side with regular employees. They do similar or identical tasks. Yet, they are usually paid less and receive little or no benefits from their true employer, the temporary help agency. Resentment and a perception of unfairness often result. These sentiments are easily exploited by union claims that it will give the temps a “voice,” with other employees at work, and power to demand fair treatment. To the degree that temps feel like “second class citizens,” they will be naturally attracted by the union sales pitch that union representation secures “respect” and “dignity” at work.
Finally, a perception that sharing a union with regular employees will lead to sharing the same wages, benefits and employment status is psychologically compelling for temps, who see the employer’s regular employees as the “have’s” and the temps as the “have not’s.” Anyone familiar with the “two tier” pay and benefit scales found in many union contracts knows that union promises to help those with less seniority or clout in the workplace are a cruel joke. Nevertheless, it is a mistake to underestimate the appeal of these union claims, no matter how false they may be.
For these reasons, virtually every temp should be considered as a potential union supporter. The impact of these new, union supporters should be measured not only in terms of how they will change the vote count in any union certification election, but also in terms of the temps’ usefulness to the union as “inside” organizers, who spread throughout the workforce as they are assigned to work in different parts of your operation.
2. Rethink The Use of Temps.
The benefits of temps must now be weighed against their impact on your union-free environment. M.B. Sturgis, Inc.’s transformation of temps into potential union votes may warrant discontinuance of the use of temps.
3. Develop Facts To Exclude Temps.
M.B. Sturgis, Inc. does not mandate that temps will always vote in every NLRB election. Temps must qualify as voters under two legal tests. Employers may want to restructure their use of temps to keep temps from qualifying as voters.
Avoid “Joint employment.” In order to vote, temps must be “joint employees” of both the “user” employer and the temporary help agency. Unfortunately, most temps will be “joint employees” of the user employer and the temporary help agency. With careful planning, however, an employer may be able to avoid “joint employer” status.
Users of temps are joint employers with the temporary help agency whenever they share or co-determine aspects of the employment relationship, like hiring, firing, discipline, supervision, or direction of work. Few users of temps are able to avoid joint employer status because most want to, at least, direct the temps’ work. If the temps’ job assignments are such that they can work either without direct supervision or under the supervision of the temporary help agency, however, the “user” employer may be able to avoid the status of a “joint employer,”1
Avoid “Community of Interest.” A user of temps can also avoid having the temps vote by preventing the temps from sharing a “community of interest” with the employer’s regular employees. The Board has long held that only employees who share a “community of interest” may be included in the same “appropriate unit for collective bargaining.” A variety of factors are used to determine whether employees share a “community of interest.” All of these factors cannot be explored here. It is enough to point out that temporaries who work side by side at the same facility, under the same supervision, and under common working conditions with regular employees will share a community of interest with these regular employees. The mere fact that temps are paid at a different rate, and by a different employer, will not be sufficient to exclude them from the same “appropriate unit.” To keep temporaries from being voters under the “community of interest” test, the user employer will have to use temporaries under working conditions that have little in common with those of the employer’s regular employees.
Employers may prevent temps from having a "community of interest" with regular employees by employing them only for a short, specific period of time, with no reasonable expectation of returning to work for the employer.2 The limits on the duration of the temps' employment, however, must be made for legitimate business reasons, not merely to prevent them from voting.3 Furthermore, if the duration of a temp's employment is merely uncertain, they will remain eligible to vote.4
4. Develop An “Exit Strategy.”
The NLRB has long held that an employer is free to cease doing business “with another employer because of the union or non-union activity of the latter’s employees,”(emphasis added).5 This may leave employers who contract with temporary help agencies free to terminate their relationship with the agency (and therefore the temps supplied by that agency), even if the reason for the employer’s action is union activity among the agency’s temps. One potential strategy for coping with the new voting status of temps is to have an “exit strategy” in place for immediately terminating all relationships with any temporary help agency whose temps become the target of union organizing. Such a strategy would include a contractual right to immediately terminate any contract with the temporary help agency, as well as a practical plan to immediately replace, or do without, the temps supplied by that agency. Beware, however, an employer may not, lawfully, have individual temps fired, or even transferred, because of their support for a union,6 and even the right to terminate the contract of a temporary help agency for this reason may not survive the NLRB's new desire to promote union organizing among temps.
5. Be Prepared To Campaign With Temps.
Finally, any employer who elects to continue using a significant number of temps should develop a plan for persuading any temps who may become voters in a NLRB election to vote “no” to the union. This will require treating temps, prior to their becoming targets of union organizing, in a manner that will give the temps some confidence in the employer’s credibility and fairness. In short, it will require creation of a union-free environment for temp employees. It will also require development of campaign tools designed to counteract the unique susceptibility of temps to union organizing. Examples of union contracts illustrating union agreement to two-tiered wage structures, and other unequal treatment of employees in the same bargaining unit should be secured. The employer must be prepared to demonstrate that a union will be unable to bargain for better treatment for temps than the employer will otherwise provide.
Temps are likely to be the most important “growth market” for the “sale” of new union memberships in decades. Union organizing among joint units of temporary and regular employees will enable unions to exploit temps as a means to unionize many employees who would otherwise remain free from union dues, strikes, and turmoil.
In addition, employers with existing unions will now face “unit clarification petitions,” filed by unions seeking to add temps to the unions’ existing collective bargaining units. The addition of new, dues paying, temps to existing collective bargaining units will give unions a windfall of union dues. This windfall will help finance further union organizing efforts.
All this means that prudent employers must act quickly to maintain their union-free environments. We must be prepared to play by the new “rules of the game” as unions organize among the single fastest growing sector of the American workforce, temps.
1 Boire v. Greyhound Corp., 376 U.S. 473, 474, 11 L.Ed. 2d 849, 851, 84 S.Ct. 894 (1964); NLRB v. Browning-Farris Industries, 691 F.2d 1117, 1143 (3d Cir. 1982); Riverdale Nursing Home 317 NLRB 881, 882 (1995).
2 Macy's East, 327 NLRB No. 22 (1998).
3 Maine Apple Growers, 254 NLRB 501, 502 (1981).
4 Lloyd A. Fry Roofing, Co., 121 NLRB 1433 (1958).
5 Local 447, United Association of Journeymen and Apprentices of the Plumbing, Pipefitting Industry, AFL-CIO (Malbaff Landscaping Construction), 172 NLRB 128 (1968).
6 Capitol EMI Music, et al., 311 NLRB No. 103, 143 LRRM 7331 (1993).