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The National Labor Relations Board (NLRB) in Washington is signaling a change of national employment policy that may strike a lethal blow to an entire industry and its employees.
The Board has opted to hear three cases that may result in forcing temporary workers, by government fiat, into unions and under collective bargaining contracts not of the employees’ choice. Also at stake is the issue of whether the NLRB will continue to expand its involvement into every aspect of union organizing and collective bargaining through a system of antiquated concepts and institutional labor union bias.
Under the guise of curing a defect in the labor law, the Board is re-examining well-settled legal precedents that currently permit temporary employees to organize and to be represented by a union, in either a single bargaining unit (with their supplier employer) or in a joint unit with the customer and the supplier. The Board declares the customer and supplier to be "joint employers" if it determines one of them actively participates in the control of labor relations and working conditions of the other’s employees. Each "joint employer" must then bargain with the supplier firm’s temporary employees (even if the two companies are separately owned).
If it is determined that the employers are not joint employers, the Board treats the situation as a "multi-employer" bargaining unit in which all of the employers involved must consent before the employees of different employers are combined into a single unit. So, what is the problem?
Big labor persuaded the Board to review the current rules in order to ease legal hurdles and organizing hazards that unions now encounter in attempting to gain exclusive monopoly representation rights for these workers. The unions argue that most employers use flexible work arrangements to avoid benefits, cut costs, or to escape their legal obligation as employers. Thus, when the customer is unionized, advocates argue that the temporary workers supplied by the staffing firm should be folded into the customer’s bargaining unit and covered by the collective bargaining agreement.
The truth is that unions have not been successful in enlisting these workers and they see the current law as an impediment to their membership objectives.
Companies use contingent workers, including temporary employees, primarily because they provide labor flexibility to meet demand fluctuations. But there are other reasons to supplement a client’s work force in short-term situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects.
Flexible work arrangements provide businesses not only a way to more competitively and effectively manage their labor needs, but they also make it easier for employees to meet personal obligations, to make time for skills training or education, or to earn supplemental income.
For some people, temporary work also acts as a bridge to full-time employment, giving them a chance to get a "foot in the door." The National Association of Temporary and Staffing Services estimates that about 40 percent of workers on temporary assignments get offered full-time positions.
Michigan employers frequently use alternative staffing arrangements to meet business needs. A survey of Michigan businesses by the National Association of Temporary and Staffing Services (NATSS) revealed that the 1995 temporary help annual payroll exceeded $956 million—compared with $347 million in 1987—an increase of almost 300% in 9 years. Average daily worker employment has doubled for the same period—from 35,230 temporary workers to 70,890.
If the unions’ arguments succeed, at least two things would follow: 1) union membership would be swelled by the addition of nonunion employees (with accompanying mandatory union dues); and 2) the practice of contracting for labor services might be substantially curbed.
Reducing the cost advantages of hiring contingent workers by NLRB rule accomplishes for the unions what they cannot win at the bargaining table—manipulating the law in order to remove the economic incentives that are gained when employers hire temporary workers. The unions promise temporary workers the same pay and benefits that prevail in the permanent work force, but these alleged advantages can be afforded to only a select few contingent workers at the expense of many others. The flexible and dynamic labor pool would be sacrificed for these few employees, and work currently being done by temporary workers would have to be accomplished far less efficiently.
The NLRB ought to be insuring economic opportunities for employees and protecting them from unwanted union arrangements, not trampling on an industry and its workers’ rights on behalf of organized labor. Just because temporary work opportunities may have a negative impact on the ability of unions to sign up more dues-paying members should not cause the Board to overturn well-established precedent that has worked for 25 years.
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