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Temporary workers lose bargaining rights

By Amy Joyce
The Washington Post

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WASHINGTON — Temporary workers will no longer be able to bargain for job benefits as part of a unit with permanent employees, the National Labor Relations Board (NLRB) has ruled, reversing a Clinton-era precedent.

In a 3-2 vote, the three members appointed by President Bush — Chairman Robert Battista, Peter Schaumber and Ronald Meisburg — said there is a difference between temporary and permanent workers. "Thus, the entity that the two groups of employees look to as their employer is not the same. No amount of legal legerdemain can alter that fact," their ruling stated.

The vote, issued Friday, overturned a 2000 NLRB ruling, called M.B. Sturgis, that allowed bargaining units that combined both temporary and permanent employees.

Two NLRB members appointed by Clinton, Wilma Liebman and Dennis Walsh, dissented. Citing the rise of temp workers, they argued that those workers would essentially be barred from organizing labor unions unless their employers consented. They said the board has a "disturbing reluctance to recognize changes in the economy and the workplace."

The new case is the latest of three major decisions overturned by the board this year by 3-2 votes. In June, the board ruled that employees in nonunion companies are no longer entitled to have a co-worker present when they are interviewed as part of a disciplinary investigation. In July, it ruled that graduate teaching assistants at universities are not employees and therefore cannot organize.

Worker advocates say the temporary-worker ruling could greatly affect an economy that increasingly relies on workers who usually aren't eligible for health care and other benefits.

"It's a very big deal," said Kate Bronfenbrenner, director of labor education research at Cornell University. "Sturgis said you can't put a temp label on someone to avoid unionizing. It took away the use of the temp status, but also meant you didn't have second-class citizens. Now, by overturning Sturgis, they are giving employers another incentive to disenfranchise workers."

The decision permits temporary workers to organize if both their temporary agency and the company where they work consent. But at least one labor expert said that will be hard to achieve.

"It's going to be an almost impossible set of permissions to be met," said Harley Shaiken, a professor of labor issues at the University of California, Berkeley.
 
"I think it is meant to and will discourage organization among temporary workers," Shaiken said. It "more clearly defines a difference between full-time and temp workers, and in certain circumstances it allows an employer to divide them more effectively."

One of the biggest sources of job gains in September was temporary jobs, which grew by 33,000. Temporary staffing firms added 48,000 jobs in October, according to the Labor Department. About 2.5 million temporary workers are in the work force today, and temps account for nearly half of the private jobs created since the beginning of 2002.

The AFL-CIO said the decision was one of several in which the NLRB is "increasingly siding with employers over workers and denying workers their federally protected rights to form unions."

But some experts say the decision will ease confusion among employers.

Temporary or contract employees work for an agency that places them with the employer, so they are essentially employed by two organizations at once.

"When you have two groups of employees working in the same location, one employed by a contractor or temp agency and another employed by the main employer ... you need to have two different bargaining units because you are really bargaining with two different employers," said Peter Panken, a management-side labor attorney with Epstein, Becker & Green in New York City.

The ruling does not prevent temporary workers from organizing, said Kenneth Dolin, a partner representing management in the labor and employment practice at Seyfarth Shaw in Chicago. Workers could form a bargaining unit with other temporary workers, he said.

Labor experts and attorneys said they expect the labor board to continue to overturn Clinton-era decisions as its majority moves from Clinton appointees, who were thought to have a pro-labor bias, to Bush appointees, who are thought to have a pro-corporate bias, Panken said.

"The labor movement is really bracing for an assault," said Robert Bruno, professor of labor and industrial relations at the University of Illinois, Chicago.