SEPTEMBER 14, 2000
LAW OF THE WORKPLACE
Allowing Temps to Organize | The NLRB decides this swelling group of workers needs more protection. Employers, of course, disagree
| Over the last two decades, the number of temporary jobs has swelled from about 417,000 to more than 3 million today. Companies have assumed wide latitude in how they treat and pay temps and their fellow nonemployees, such as independent contractors, resulting occasionally in high-profile flaps over the rights of so-called contingent workers at places such as Microsoft. This might have created an opportunity for union organizers, except for one thing: A 1990 decision by the National Labor Relations Board precluded unions from signing up the people that temp agencies funnel to their corporate customers. That may soon change, however, thanks to yet another ruling from the NLRB.
Shortly before Labor Day, the board issued a decision overturning a Bush Administration-era ruling that had all but barred agency-placed temps from joining their unionized companies' collective-bargaining units. If the Aug. 25 decision survives a likely challenge in federal court some months or years from now, these workers should have an easier time joining a union.
EMPOWERING TEMPS. Organized-labor advocates applaud the decision, saying it could help right an imbalance of power that has favored employers over contingent workers. Management representatives, of course, decry the decision. They say it will complicate contract negotiations and make employers think twice about using the temps who have allowed companies the flexibility to respond to the New Economy's rapid changes.
Flexibility for a company often means instability for an employee, however, and that's where unions see an opportunity. Indeed, according to the Bureau of Labor Statistics, the economy now includes as many as 5.6 million contingent workers -- and many millions more if part-timers are added to the mix. "I think [the NLRB decision] is the beginning of the traditional legal structure realizing that it has to adjust to a changing workforce," says Sara Horowitz, executive director of Working Today, a New York City-based advocacy group for independent contractors and other nontraditional workers.
The three-to-one ruling examined a 1990 case in which the NLRB had decided that a workplace bargaining unit composed of both agency-placed temps and full-timers was generally permissible only with the consent of both the "supplier"- and "user" employers (NLRB parlance for the agency and its corporate client). Labor advocates say this ruling greatly hampered efforts to organize temps, because employers are hardly likely to give their blessings to union activity. As a consequence, the board wrote in August, "a growing number of employees who are part of what is commonly described as the contingent workforce, are being effectively denied representation rights guaranteed them under the National Labor Relations Act."
The board set aside the dual-consent requirement, noting, among other things, that the 1990 case was decided before the contingent workforce's rapid growth was obvious. The panel cited a recent General Accounting Office study reporting that the number of temporary U.S. jobs rose 577% from 1982 to 1998, compared with an overall job growth rate of 41%.
EQUAL TREATMENT. To some labor-market experts, the new decision seems like common sense. "When workers are doing the same tasks as other people under the same supervisor and have the same community of interest, I see no reason that would justify treating them differently," says James A. Gross, a professor at Cornell University's School of Industrial & Labor Relations.
Few labor advocates believe the decision will erase all difficulties in organizing temps. Still, they note, employers may face obstacles if they try to circumvent the ruling by, for example, turning over temps often enough that they never reach the end of the probation period often required before full acceptance in a union. Now, unions have the clout to bargain about such practices, says Judith A. Scott, general counsel for the Service Employees International Union. In addition, she notes, employers that use the same frequent-turnover tactic might run afoul of NLRB rules regarding unfair anti-union practices.
Moreover, says Kate L. Bronfenbrenner, director of labor-education research at Cornell and an authority on organizing the contingent workforce, the ruling removes a powerful weapon from the arsenals of employers. "It takes away their ability to use the threat of contingent labor to keep unions out," she says. Bronfenbrenner believes the ruling will have its most immediate impact in industries that have a tradition of unions and also rely heavily on temp workers, including health care, food services, manufacturing, and retailing.
UNCONVINCED. It's less likely to be felt in high-tech industries, where little or no union tradition exists and an abundance of young workers are unfamiliar with and skeptical of organized labor, says David L. West, director of the Center for a Changing Workforce, a Seattle research group.
That's small comfort, however, to the employers who are most likely to be affected. They seem to be most concerned about the headaches the ruling could lead to in contract negotiations, when there'll be two sets of employers with vastly different interests -- the temp agency and its client -- at the table. A temp company, for example, may be reluctant to make concessions that would treat some of its gypsy workers -- a worker the agency often places several times a year -- differently from others. "It tremendously complicates things," Stephen A. Bokat, general counsel of the U.S. Chamber of Commerce, says of the decision. "You've got three parties negotiating instead of two."
In addition, many employer representatives reject the assertion that employers turn to temp and contract agencies in part to undermine unions. Yes, employers use temps because they are cheaper than permanent staff: A 1999 Bureau of Labor Statistics study found, for example that only about 8.5% of temps get health insurance from their employer, compared to 58% of traditional workers.
MEETING NEEDS. But temps have become popular for other reasons. Small companies often use the agencies to relieve themselves of the paperwork and government red tape surrounding employment matters, says Scott J. Witlin, a partner at Proskauer Rose, a law firm representing employers in labor and employment disputes. Other companies, he adds, aim to mold a workforce that can respond quickly to the changing demands of a fickle marketplace.
Finally, says Joel Biller, a lawyer and senior vice-president at Manpower, the Milwaukee-based staffing giant, the decision addresses what he considers a nonproblem. He argues that notwithstanding the publicity given to "permatemp" jobs -- temp jobs that turn out to be long-standing but lack the perks of full-time employment -- most temps work at a company for a short time and then move on to their next assignment. Furthermore, he asserts, when temps work in union workplaces, it's often with the agreement of the union.
Biller's point makes sense, however, only if you assume that temps really prefer to change jobs several times a year -- seldom if ever receiving fringe benefits as they play musical jobs. Daniel R. Schlademan, director of organizing at Local One of the Service Employees International Union in Chicago, thinks most temps are forced -- rather than choose -- to accept these conditions.
MISSED CHANCES. Four years ago, Schlademan was working for the Amalgamated Clothing & Textile Workers Union (now merged with the International Ladies' Garment Workers) in an effort to organize production workers at a plastics factory in Michigan. About half the workers were temps, he says. Many were eager to join the campaign and disappointed to learn that they would be excluded because of the 1990 decision. And, Schlademan adds, temps who sided with the union often found themselves reassigned by their temp agency or dismissed altogether -- a big chill on the organizing effort, which ultimately died.
Would things have turned out differently had the dual-consent ruling come earlier? Schlademan thinks so. "It ultimately would have made the difference between being able to organize that place and not."
By Pamela Mendels in New York
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Copyright 2000, by The McGraw-Hill Companies Inc. All rights reserved.
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