TEMPORARY/CONTINGENT WORKERS: WILL...

© 2001 American Bar Association http://www.bna.com/bnabooks/ababna/annual/2001/schiffer.doc

TEMPORARY/CONTINGENT WORKERS:

WILL THEY EVER BE ACCORDED FULL NLRA RIGHTS?

Historically, temporary and contingent workers have faced difficult legal

challenges in their attempts to enforce their rights under the National Labor Relations

Act. One insurmountable obstacle denying their access to NLRA rights was overcome

last August in M.B. Sturgis, Inc./Jeffboat Division,1 when the National Labor Relations

Board overruled prior cases which had effectively denied representation rights for such

workers. In so doing, the Board removed employer consent as a pre-condition for

combining temporary workers in bargaining units with “regular” employees. The Board

acknowledged that its prior rule had “the potential for denying numerous affected

employees the same Section 7 rights to self-organization accorded other employees under

the Act” and that it “undermined[d] the Board’s ability to make collective bargaining

reasonably possible for the employees affected by this policy.”2

But just when temporary workers thought they were on their way to organizing

and bargaining, new legal obstacles have been devised. One such recently created hazard

is the “super” community-of-interest barrier to temporary worker organizing that has

emerged in dissenting and concurring opinions in Interstate Warehousing of Ohio, LLC,3

and J. E. Higgins Lumber Co.,4 respectively. An examination of M.B. Sturgis, supra.,

and its impact on the rights of temporary/contingent employees under the National Labor

1 330 NLRB No. 173 (2000).

2 Id., p. 11.

3 333 NLRB No. 83 (2001)

4 332 NLRB No. 109 (2000).


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Relations Act will explain how the first obstacle, which operated to deny those rights,

was eventually overcome and why this new challenge is likewise misplaced.

The Temporary/Contingent Workforce:

Before embarking on this legal analysis, the population known as the

temporary/contingent workforce must be defined and examined. A review of their

demographics lends important perspective to a discussion of their NLRA rights to

organize and bargain.

The terms “temporary” and “contingent” worker encompass a wide variety of

nonstandard employment arrangements. These include agency temporary workers,

direct-hire temps, on-call workers, day laborers, contract company workers, independent

contractors, self-employed workers, leased workers and part-time workers. When all of

these categories are considered, the temporary/contingent workforce “makes up almost

30 percent of the total workforce.”5

According to the Department of Labor’s Bureau of Labor Statistics, in figures

released May 24, 2001, the proportion of U.S. workers holding contingent jobs declined

somewhat between 1999 and 2001, but the use of various alternative employment

arrangements held steady during this same two-year period.6 However, over the past

decade, one particular segment of this alternative workforce “has grown significantly” –

5 Contingent Workers, Incomes and Benefits Lag Behind Those of Rest of Workforce, General

Accounting Office/Health Education and Human Services Division, 00-76, June 2000, p. 14.

6 BNA, Daily Labor Report, 5/25/01, D-1.


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the temporary help supply industry.7 About 10% of the job growth in the 1990’s was in

temp agencies.8

There are certain popular notions about temporary workers that simply do not

apply to most of this population. One is that they are young people building their job

skills and resumes by gaining training and experience from diverse employers; another is

that they are free agents, tired of their traditional jobs and now choosing life without a

boss; or that they are parents opting for fewer working hours in order to spend more time

with their families. Some of these notions are true for some of these workers. But this is

a very diverse population and these popularly-held beliefs do not hold true for most

temporary/contingent workers.

Of those workers employed in alternative work arrangements, some are relatively

satisfied with their current employment -- independent contractors, the self-employed and

part-time workers. In contrast, most temporary agency and on-call workers would prefer

standard employment to their current arrangements.9 And with good reason.

Independent contractors and the self-employed typically suffer no pay penalty for their

nonstandard work arrangements. In fact, they often make more than their “traditional”

counterparts. But not all temporary workers are so advantageously situated. Agency

temps are more than three times as likely to have annual family incomes below $15,000

as standard full-time workers, even those of the same age and the same levels of

7 Contingent Workers, Incomes and Benefits Lag Behind Those of Rest of Workforce, General

Accounting Office/Health Education and Human Services Division, 00-76, June 2000, p. 16.

8 David Wessel, Temp Workers Have Lasting Effect, Wall St J. Feb 1, 2001, at A1.

9 Nonstandard Work, Substandard Jobs – Flexible Work Arrangements in the U.S., Economic Policy Institute/Women’s Research & Education Institute, 1997, p. 58-61.


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educational attainment who work in similar occupations and industries and live in the

same general areas of the country.10

Promotional opportunities are likewise available only to certain segments of the

temporary/contingent population. Statistics show that career advancement through

nonstandard jobs works for men, but is much less likely to work for women. Over their

working lifetimes, women in temporary/contingent work arrangements do not move up to

higher quality jobs. The share of young women in low-quality nonstandard jobs is as

high as 92%. This percentage doesn’t decline much as women grow older – more than

three-fourths of women in their prime work years have low-quality nonstandard jobs. In

contrast, for men ages 16 to 24, 78% work in low-quality jobs, but by age 55 to 64, only

21% remain in such jobs and 74% are in high-quality jobs. For many

temporary/contingent workers, promotional opportunities remain illusory.11

There are more telling statistics. Work arrangements with the largest pay

penalties and the lowest likelihood of providing health insurance and pension are

disproportionately female. In contrast, independent contractors, the best-paid type of

non-standard work, typically earning more than traditional workers, are

disproportionately over 35, white and male.12 Temporary agency workers are

disproportionately black, Hispanic, young and female.13

10 Id., p. 16-19.

11 Id., p. 47-48.

12 BNA Daily Labor Report, 5/25/01.

13 Nonstandard Work, Substandard Jobs – Flexible Work Arrangements in the U.S., Economic Policy institute/Women’s Research & Education Institute, 1997, p. 42-45.


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Given these statistics, it should come as no surprise that, for contract workers, the

most common occupation for a white man is systems analyst. For black men and

Hispanic women, the most common job is janitor. For Hispanic men, groundskeeper; for

black women, guard; and for white women, nursing aide. For on-call workers, white men

are disproportionately truck drivers, black men are laborers, and Hispanic women are

aides.14

Over all, contingent workers are less likely than standard full-time workers to

have employer-provided health insurance and pensions benefits. Agency temps are the

least likely to have health insurance benefits. Only 9% of agency temps have employer-

provided health insurance compared with 73-77% of standard full-time workers. Are

they otherwise covered? Again, the statistics show that only 43% of agency temps have

employer-provided health insurance from any source compared with 88% of standard

full-time workers.15

Pensions are another serious deficit. One study broke pension benefits down by

contingent worker category and discovered that, while 64% of regular full-time

employees, on average, participate in employer-provided pension plans, only 46% of

contract company workers, 21% of part-time workers and 7% of temporary agency

workers participate.16

14 Id., p. 9-10.

15 Contingent Workers, Incomes and Benefits Lag Behind Those of Rest of Workforce, General Accounting Office/Health Education and Human Services Division, 00-76, June 2000, p. 19, 22.

16 Id., p. 24-25.


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These statistics help to put a face on the workers who make up the

temporary/contingent workforce. They demonstrate that most workers in alternative

working arrangements are not upscale “free agents” looking for a change from the 9 to 5

grind, enjoying being their own boss. Rather, they are, for various reasons, mired in

nonstandard jobs that lack decent pay, benefits, flexibility, upward mobility and job

security. Public policy should aim to provide secure employment and decent conditions

for those who toil in these different work arrangements. A basic starting point is the

National Labor Relations Act. Its protections should be available to such employees so

that they can choose to organize and bargain on their own behalf at the workplace.

M.B. Sturgis/Jeffboat-- The First Step Towards NLRA Rights:

M.B. Sturgis, Inc./Jeffboat Division17 opened the door to a voice at work for

temporary agency and contract workers. In the past, agency [or “supplied”] employees

who worked side-by-side with their “regular” full-time counterparts [i.e., employees of

the “user” employer] could be included in a bargaining unit with such “regular” full-time

employees only if both the user and supplier employers consented. According to the

NLRB, pre-Sturgis, such consent was necessary because the involvement of two

employers constituted a “multi-employer” bargaining arrangement of user and supplier

employers which is permissible only if both employers agree to the arrangement. In

Sturgis/Jeffboat, the Board reversed this earlier precedent and rejected the multi-

employer analysis when applied to temporary employees. It decided that user and

supplier employees can be included in a single unit without their employers’ consent.

17 331 NLRB No. 173 (2000).


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Consent, which had become an insurmountable obstacle to organizing, was eliminated by

this new ruling.

The Facts in Sturgis:

The union’s petition sought a unit of all the employees of Sturgis’s Maryland

Heights, Missouri plant, which produces flexible gas hoses. Of these, 34-35 were solely

employed by Sturgis and 10-15 were supplied to Sturgis by Interim, a national provider

of temporary employees. The temporaries work side-by-side with Sturgis’s employees,

performing the same work and subject to the same supervision. The temporary

employees are hired by Interim, which determines their wages and benefits and pays

them. Both groups of employees work the same hours, except that temporary employees

are not permitted to work more than 40 hours per week.

The union sought to exclude the temporary agency employees; Sturgis argued

for their inclusion. Interim, the supplier agency, did not participate in the hearing and

the record contained no evidence that Interim consented to their inclusion.

The Facts in Jeffboat:

Jeffboat is a shipbuilder with a large yard on the Ohio River in Jefferson, Indiana.

Its 30 welders and steamfitters are supplied by TT&O, a temporary supplier firm. The

union filed a unit clarification petition to accrete these welders and steamfitters to its unit

of 600 production and maintenance employees covered by a contract between Jeffboat

and the union.

Jeffboat’s supervisors assign, direct and oversee the daily work of the TT&O-

supplied employees. Jeffboat supervisors have authority to discipline the TT&O-


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supplied employees for unsatisfactory performance or for infractions of Jeffboat’s rules

and regulations and are responsible for monitoring the time they spend on different

assignments.

In both Sturgis and Jeffboat, the Regional Directors concluded that the user

employer was a joint employer with the temporary agency, but that a combined unit was

not appropriate, absent consent, on the basis of the Greenhoot doctrine.

The Greenhoot Doctrine:

Any discussion of Sturgis really has to start with Greenhoot, Inc.18 because

Sturgis was merely the vehicle for its undoing. In Greenhoot, the union petitioned for a

unit of building maintenance employees employed by Greenhoot, a management

company, at 14 building locations in the District of Columbia. The union named

Greenhoot as the employer. The Board held that the separate building owners at each

building location were joint employers with Greenhoot. The Board then treated the

petition as seeking a multi-employer unit with Greenhoot and the building owners, who

were not named in the petition. It concluded that, absent consent by the employers in

which they “manifested a desire to be bound in future collective bargaining by group

rather than individual action,” the unit was inappropriate.19 However, separate units at

each location would be appropriate, according to the Board.

Greenhoot's Expansion in Lee Hospital:

18 205 NLRB 250 (1973).

19 Id., at 261.


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The Greenhoot requirement of consent was significantly expanded in Lee

Hospital.20 There, certified registered nurse anesthetists sought representation separately

from other hospital professionals relying, in part, on an assertion that they were jointly

employed by the hospital and AAI [Anesthesiology Associates, Inc.]. The Board held

that the petitioned-for nurse anesthetists did not constitute a separate appropriate unit,

that AAI was not a joint employer with the hospital, and that even if AAI and the hospital

were joint employers, the nurse anesthetists could not be combined with a unit of

professionals employed solely by the hospital absent both employers’ consent.21

The Sturgis/Jeffboat Decision:

In Sturgis, the Board significantly limited Greenhoot and overruled Lee Hospital

as wrongly decided. The Board held that there is "no statutory requirement of employer

consent to a unit combining solely and jointly employed employees of a single user

employer" because no multi-employer bargaining is implicated. The Board’s decision is

based on its interpretation that a Section 9(b) “employer unit” is “delineated by work

being performed for a particular employer,” rather than by the identity of the employing

entity. According to the Board, its decision is consistent with well-settled precedent that

both precedes and postdates Greenhoot, and is premised on the Board’s conclusion that

the Greenhoot doctrine wrongly denied contingent workers their rights under the Act.

Lee Hospital was specifically overruled:

20 300 NLRB 947 (1990). 21 Id., at 948.


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Employer consent is no longer required for a unit which combines employees of a

single user employer, including those employed directly by the user employer and those

employed jointly by the user employer and by a supplier [temporary agency] employer.

After carefully reviewing our precedent and the policy questions raised, we find that the units at issue -- all the employees performing work on behalf of the user employer (e.g., M.B. Sturgis and Jeffboat) -- do not constitute multiemployer units requiring consent.

***

Separating "regular" employees i.e., the solely employed from the "temporaries" who may . . . share the same classifications, skills, duties, and supervision, creates an artificial division that is not required by the statute. We therefore overrule Lee Hospital and find no statutory requirement of employer consent to a unit combining solely and jointly employed employees of a single user employer.22

The decision allows [but does not require] temporary agency or “supplied”

workers to join an existing unit of regular or “user” employees when those employees are

already organized, and to join with unrepresented user employees to form a single

bargaining unit as part of a new organizing campaign.23 The determination of whether

such “supplied” workers and “user” workers will be combined into a single bargaining

unit is based on the traditional community of interest standard.

Under Section 9(b) of our statute, a group of an employer’s employees working side by side at the same facility, under the same supervision, and under common working conditions, is likely to share a sufficient community of

22 M.B. Sturgis/Jeffboat Division, 330 NLRB No. 173 (2000), p. 8.

23 Sturgis does not specifically address whether solely and jointly employed employees of a “user” employer can constitute a single appropriate unit when there are multiple supplier employers as this configuration was not presented. At the least, the logic of Sturgis requires that, where a union’s petition seeks a combined unit of user and supplier employees and names only the single user employer, and not the various supplier employers, no multiemployer unit is presented and consent is not required.


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interest to constitute an appropriate unit. [emphasis in original]

That some of the employees working for that employer may have some differing terms and conditions of employment from those of their colleagues does not ordinarily mean that those employees cannot be included in the same unit, although it might, in some circumstances, permit them to be represented in a separate unit.24

The Board cautioned, however, that a combined unit of user and supplier

employees is not automatically an appropriate unit.

By our decision today, we do not suggest that every unit sought by a petitioner, which combines jointly employed and solely employed employees of a single user employer, will necessarily be found appropriate.25

Indeed, in the subsequently decided case of Lodgian, Inc. d/b/a Holiday Inn City

Center,26 the Board denied review of a Decision and Direction of Election finding that a

petitioned-for unit of housekeeping, laundry, food and beverage workers, which excluded

jointly employed temporary agency employees, was an appropriate unit. The employer

objected that the unit must include the jointly employed employees as well. In allowing

the user-only unit to stand, the Board emphasized that it was “not passing on the issue of

whether a unit that encompasses both the solely employed employees and jointly

employed employees also would be appropriate under a community-of-interest analysis”

because the union was seeking only the solely employed employees and was “seeking to


25 Id., p. 9.

26 332 NLRB No. 128 (2000),


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bargain only with the Employer, and not the supplier employers.”27 The Board also

explicitly refrained from reaching the issue of whether the jointly employed employees

could constitute a separate appropriate unit.

Greenhoot was clarified:

The Sturgis decision allows bargaining units of supplier employees to be

organized, even if they work at various user employer facilities, like janitors who are

assigned to work in various buildings. According to the Board, in units with a single

supplier employer and various user employers, no multi-employer unit is created when

the union names only the single supplier employer in its petition for a supplier-wide unit.

The Board concluded that such a unit "is not a multi-employer unit because the petition is

seeking to represent the employees vis-a-vis a single employer," i.e., the supplier

employer. If the union names only the supplier employer in its petition, there is “no

statutory impediment to a supplier-wide unit.”28 According to the Board, a unit of

employees of a single supplier employer is appropriate even though some terms and

conditions of employment may be controlled by a supplier employer not named in the

petition.29

27 Id., n.2.


29 The Board subsequently made clear that a petitioning union “may seek to bargain with and name in its petition only the single user employer.” Professional Facilities Management, Inc., 332 NLRB No. 40 (2000). The Board will not require “the naming of all potential joint employers.” According to the Board, “the absence of one of the alleged joint employers at the bargaining table does not destroy the ability of the named employer … to engage in effective bargaining … to the extent it controls their terms and conditions of employment,” citing Management Training Corp., 317 NLRB 1355 (1995). See also, Memorandum OM 01-31, issued January 26, 2001, “Participation of Supplier Employer in M.B. Sturgis Representation Cases.”


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However, the Board continues to maintain that a multi-employer unit is created in

Greenhoot-type units of a single supplier employer and various user employers when the

union "seeks to represent a unit that includes employees of all of the users" and seeks

bargaining with all of the user employers. In this respect, Sturgis/Jeffboat did not go far

enough. All of the reasons that led the Sturgis/Jeffboat Board to decide that Lee Hospital

should be overruled are equally supportive of overruling all of Greenhoot. The Board’s

characterization of the Greenhoot unit of a single supplier and multiple user employers as

a multi-employer unit requiring consent is just plain wrong. It violates the plain text of

Section 9(b), is contrary to the legislative history, departs from Board precedent, and does

not further any legitimate statutory policy.

As the Board made clear in Sturgis, the scope of a single supplier employer’s

workforce “is delineated by the work being performed for a particular employer,” albeit,

in this circumstance, a single supplier – rather than user – employer. The statutory

rationale articulated in Sturgis to support elimination of the consent requirement for units

of user employers supports its elimination for units of supplier employers, as does prior

Board caselaw.30 Mischaracterizing such a unit as a multi-employer unit is contrary to

the statutory purposes of the Act because it requires numerous splintered bargaining units

for employees who share a community of interest.

Most importantly, this is, plain and simply, not multi-employer bargaining.

Multi-employer bargaining describes groups of employers who combine, without regard

for any employee community of interest of even employee commonality, and delegate

30 Archdiocese of Philadelphia, 227 NLRB 1178 (1977); Seligman & Associated, Inc., 240 NLRB

110 (1979), enforced, 639 F.2d 307 (6th Cir. 1981) (a single combined unit of employees of a sole supplier employer and multiple apartment complex owner/user employers found appropriate).


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their bargaining authority in favor of one voice at the bargaining table, with a goal of

reaching a single set of contract terms. Here, in the Sturgis situation, joint employers are

brought to the bargaining table to advance their own bargaining interests because each

employs employees in a bargaining unit jointly with another employer. Each employer

bargains only as to the employees with whom it has an employment relationship and just

to the extent of its control over the terms and conditions of those employees. Each

advances its own interests without delegation and a single or substantially similar

contract may not be the outcome.

In this latter situation, consent is not required because the employer is not

granting authority to an agent to act on its behalf. No employer is agreeing to be bound

by the outcome of a group effort; each employer does not even necessarily bargain over

all the terms and conditions of employment of all the employees. The requisite attributes

for multi-employer bargaining and the concomitant justification for the consent

requirement are totally lacking.

Community of Interest Standard

In order for a combined unit of user and supplier employees to be appropriate, the

employees must share a community of interest. Sturgis did not change this standard,

which examines the following factors:

(1) similarity of working conditions, (2) job classifications, (3) skills and functions, (4) similarity of products, (5) interchangeability of employees, (6) geographic proximity, (7) functional integration of the business, (8) centralization of management control, (9) collective bargaining history, and [in accretion cases] (10) the size and number of employees at the facility to be acquired


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as compared with the existing operation.31 This community of interest standard has been applied by the Board in

subsequently issued Sturgis-related cases. In J.E. Higgins Lumber Co.32 the Board

remanded a case for review in accordance with Sturgis. There, an employer filed a unit

clarification petition to exclude certain temporary agency employees supplied by TLC

Transportation Staffing, Inc., relying on Greenhoot and the absence of employer consent

to their inclusion. The employer began hiring TLC employees to perform regular

bargaining unit work as truck drivers and warehousemen after the parties negotiated their

most recent collective bargaining agreement which allowed the employer “up to two (2)

non-bargaining unit employees” doing bargaining unit work.

The union filed a grievance over the failure of the employer to include TLC

employees in the bargaining unit. An arbitrator held that the employer and TLC were

joint employers and, because there were already two non-bargaining unit employees

performing bargaining unit work as provided for in the contract, the additional

warehousemen and drivers of TLC were subject to the parties’ collective bargaining

agreement. In his decision on the employer’s unit clarification petition, the NLRB

Regional Director concluded that TLC and the employer were joint employers but that

Greenhoot precluded their inclusion in the existing bargaining unit absent the consent of

both employers.

The Board remanded for further consideration “consistent with M.B. Sturgis.”

Member Hurgten, [now Chair], concurred in the remand, but set forth his view that he

31 How to Take a Case Before the NLRB, 7th ed. 2000, p. 114.

32 332 NLRB No. 109 (2000).


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“would not, without an employee vote, add the supplier/user employees to an extant unit

of user employees, unless the test for accretion is satisfied.” Moreover, he would require

an “overwhelming” community of interest in order for the newly hired TLC employees to

be included in the existing bargaining unit with other warehousemen and drivers. For

new units as to which a representation petition has been filed, Hurtgen would apply the

“standard” community of interest test. But he cautioned that he had “serious concerns”

as to whether this lesser standard could ever be met since user and supplier employees

would have “differences regarding economic emoluments of employment” because the

supplier sets “emoluments” for the jointly-employed group while such “emoluments” for

the user groups are set only by the user.33

This latter theme, that there are “grave questions as to whether the two groups

share a community of interests,” was reiterated by Hurtgen in Interstate Warehousing of

Ohio, LLC.34 There, a union sought to represent a unit of approximately 59 warehouse

workers, including 20 warehouse workers supplied by temporary employment agencies.

The Board majority, then-Chairman Truesdale and Member Walsh, denied the

employer’s request for review, agreeing with the Regional Director’s determination that

the employer is a statutory employer of the temporary employees and that a unit of

permanent employees and jointly-employed temporary employees is appropriate.

According to the Board, the community of interest standard for finding an appropriate

unit was satisfied by uncontradicted evidence that the temporary employees work side-

by-side and are largely interchangeable with the permanent workers, share the same job

33 Id., p. 1-2.

34 333 NLRB No. 83 (2001).


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classification, work functions, working hours and supervision, and that all permanent

employees hired within the past year were hired from the temporary workforce.

Hurtgen dissented in part based on his “substantial doubts as to whether the two

groups share a community of interests” where the economic conditions of each groups


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are set by the supplier and user employers, respectively. He also articulated concerns

about “substantial bargaining difficulties” if the two groups were combined.35

The Inclusion of Newly Hired Temporary Agency Workers Does Not Raise Accretion Issues

The hiring of temporary agency workers into an existing workforce to perform the

same work as “regular” workers, in the same job classifications, under the same working

conditions and subject to the same supervision, does not create an accretion situation.

Application of an accretion community of interest standard in such circumstances is not

consistent with existing precedent, is contrary to the purposes and policies of the Act and

further denies temporary employees their rights to organize and bargain.

The accretion doctrine is used to analyze whether job positions not in existence

when the unit was certified should be added to an existing unit.

An employer’s acquisition or construction of an additional operation or facility after the execution of the contract frequently gives rise to a claim of accretion.36

Accretion is designed to address the expansion or relocation of operations, or the merger

of separately represented units into one overall unit.

When an employer expands or relocates some or all of its operations, questions that arise concerning the inclusion of new or relocated employees in an existing bargaining unit may be determined by a petition for clarification.37

35 As the majority in Interstate, supra., properly noted, such concerns are not appropriately

presented in the community of interest analysis involved in a representation case. Nevertheless, many examples are available of parties to bargaining relationships accommodating such concerns through joint bargaining, coordinated bargaining, and other such arrangements. Indeed, contracts involving large national units are often bargained at both national and local levels, with the parties dividing the issues between the two sets of negotiations, each with its own deadlines and expiration and implementation dates.

36 Patrick Hardin, The Developing Labor Law, 3rd ed., Vol. I, 1992, p. 404.

37 How to Take a Case Before the NLRB, 7th ed., 2000, p. 341-342.


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Situations giving rise to an accretion analysis include the opening of a new store by a

retail chain;38 the establishment of a new department in an existing manufacturing

facility;39 the merger of work previously performed by separate facilities or divisions;40

employees hired in a job classification not previously in existence;41 an employer’s

acquisition of another employer;42 and competing claims by two unions for newly

established work.43 All of these situations involve some sort of change in the nature

and/or location of the bargaining unit work being performed.

In contrast, when an employer turns to temporary agencies to supply its

workforce, no accretion situation is presented. Rather, the newly hired employees are in

the same position as any employees newly hired into the bargaining unit, except that they

are jointly employed instead of solely employed. This distinction does not present an

accretion situation. There is no change in the nature and/or location of the bargaining

unit work.

The difference between adding new employees to an existing bargaining unit and

an accretion situation was explained by Administrative Law Judge Melvin J. Welles:

Normally, the question whether or not there is an accretion to an existing bargaining unit involves a new

38 Rice Food Markets, Inc., 255 NLRB 884, at 886 (1981); Sunset House, 167 NLRB 870 (1967),

enforced, 415 F.2d 545 (9th Cir. 1969).

39 Borg-Warner Corp., 113 NLRB 152 (1955).

40 J.W. Rex Co., 115 NLRB 775 (1956).

41 National Petro-Chemical Corp., 116 NLRB 1197 (1956).

42 Red Ball Motor Freight, Inc., 118 NLRB 260 (1957).

43Marion Power Shovel Co., Inc., 320 NLRB 576 (1977).


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group of employees. The simplest form of “accretion” is the hiring of new employees to enlarge an existing complement. Naturally, the new employees are part of the existing unit, and the matter is so simple that the term “accretion” is not even utilized. When the new group of employees is separately located and supervised, or performs separate and distinct functions from those performed by employees in the existing unit, then they must be found to be an “accretion” in order to be part of the existing unit.44

In that case, then-ALJ Welles concluded that an employer’s division of its existing

facility was not properly characterized as an accretion and that the employees remained

part of the existing bargaining unit.45

To burden the union with proving that newly hired temporary agency workers are

an accretion to its existing unit is not only an extreme extension of the accretion doctrine,

but it confers on the employer the ability to unilaterally alter the composition of the

bargaining unit through its hiring practices. If it hires from the street, the employees

automatically become part of the bargaining unit; if it hires through a temporary agency,

the union must suddenly prove that the new workers are an accretion, even though they

are performing bargaining unit work in the same manner and location and under the same

supervision and working conditions as any other newly hired worker. Rather, the burden

should be on the party seeking to undo an historic unit and remove employees performing

bargaining unit work to prove that there are sufficient dissimilarities to negate the

community of interest they share even though the newly-hired temporary workers are

44 Rice Food Markets, Inc., 255 NLRB 884, 886 (1981).

45 See also, Bay Shipbuilding Corp., 263 NLRB 1188 (1982), enforced 721 F.2d 187 (7th Cir. 1983), where a change from manual to computer lofting and a relocation of work did not authorize the employer to unilaterally redesignate unit work as non-unit work.


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furthering the employer’s business operations in the same manner, method and location

as its newly-hired solely-employed employees.

This approach was followed by an Administrative Law Judge in a case currently

pending before the Board.46 The case presents the bargaining unit status of newly hired

employees admittedly hired through a temporary agency because such employees could

not be recruited directly by the user employer. The complaint, issued in 1999, alleges

that the employer violated its bargaining obligations by refusing to apply the parties’

agreement to the temporary agency employees. The union does not seek a bargaining

relationship with the supplier employers.

The case was initially dismissed on the basis of Greenhoot, but the Board

remanded in light of M.B. Sturgis.47 On remand, the ALJ concluded that the temporary

agency employees should be covered by the pending agreement because the “user

employer assigns work and directs the supplied employees, establishes labor relations

policies, and uses its own supervisors to exercise day-to-day control over the supplied

employees.” Moreover, the user employer has authority to “discipline the supplied

employees,” and “determines hours and sets the work schedules, including directing the

supplied employees to work overtime on Saturdays.” The supplier employers set the

hourly wage rate, provides workers’ compensation, makes all relevant payroll deductions

and contributions, and issues payroll checks to the supplier employees.48

46 Tree of Life, Inc. d/b/a Gourmet Award Foods, Northeast, 2000 NLRB LEXIS 845 (2000).

47 Tree of Life, Inc., d/b/a Gourmet Award Foods, Northeast, 332 NLRB No. 24 (2000).

48 Tree of Life, Inc. d/b/a Gourmet Award Foods, Northeast, 2000 NLRB LEXIS 845 (2000), p. 6.


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The ALJ’s decision in this case is firmly supported by the holding in Sturgis that

“a group of an employer’s employees working side-by-side at the same facility, under the

same supervision, and under common working conditions, is likely to share a sufficient

community of interest to constitute an appropriate unit,” and its conclusion that the fact

that “some of the employees working for that employer may have some differing terms

and conditions of employment from those of their colleagues does not ordinarily mean

that those employees cannot be included in the same unit….”49

This approach is also consistent with the purposes and policies of the Act. It

protects the interests of bargaining unit exclusivity and unit appropriateness under

Sections 9(a) and (b) from fragmentation and dissolution by ensuring that employees who

have common interests are combined into a single bargaining unit. Such a grouping

facilitates collective action, permits the formulation of common demands and avoids the

establishment of a parallel bargaining unit within the same employer. Such parallel

groups, one for jointly employed and one for solely employed employees performing the

same work in the same location for the same employer with the same supervision, would

seriously undermine the bargaining rights of both groups and unduly and needlessly

burden and fracture the bargaining process. Requiring numerous splintered bargaining

units for employees who share a community of interest is contrary to the statutory

purposes of the Act.

49 M.B.Sturgis/Jeffboat, 331 NLRB No. 173 (2000), p. 9.


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Conclusion:

Now that Sturgis has removed the requirement of consent for many temporary

employees, new obstacles are being fabricated to prevent their exercise of their NLRA

rights to organize and bargain: If their employer can no longer prevent their organizing

rights by withholding consent, perhaps the bar for their inclusion in existing bargaining

units can be raised beyond reach; or maybe no meaningful bargaining obligation will

attach; or maybe …. These employees have been effectively denied their § 7 rights long

enough. They should finally be accorded the statutory protections to which they are

entitled.

TEMPORARY/CONTINGENT WORKERS: WILL...

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