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NLRB Pushes Back Against Permatemps



In their myriad ways to avoid not only unions but also responsibility for their own employees, employers have come up with any number of ways to control workers without having any legal obligation to them. One of the most effective ways is to use temp agencies for long-term workers who labor on the shop floor next to actual employees, doing the same work with lower wages and fewer if any benefits. The Japanese auto industry’s investment in American factories for instance has relied heavily on this sort of arrangement. How can a factory unionize when the workers are technically employees of different companies? This is of course half the point of it, the other half being lowering employee compensation. Before this week, the rule was that the temp company would have to grant permission for their employees to be included in such a bargaining unit, which is of course laughable that they would grant. But by a 3-1 vote, the NLRB overturned that rule this week.

The National Labor Relations Board is reaffirming its view that labor law must now address the brave new world of the fissured workplace—where workers are often separated from their actual employer by layers of subcontractors and staffing agencies. On Monday, the board announced a decision on the case Miller & Anderson, ruling that unions that want to represent bargaining units including direct employees as well as “permatemps,” contract workers, and other indirect workers that share a “community of interest” are no longer required to get permission from the parent company.

The old standard, established by George W. Bush’s NLRB in 2004, which required unions to gain such parent-employer consent, allowed companies to use staffing agencies and subcontractors as a barrier to organizing drives. Under the new ruling, a nurses union, for example, can now more readily expand bargaining units at a hospital to include registered nurses who are directly employed by the hospital, as well as nurses who work for staffing agencies hired by the hospital.

This is absolutely huge and another enormous advance in labor law by Tom Perez’s Department of Labor.

In an increasingly fractured world of labor relations, it’s hard to understate how big of a deal this is for easing union organizing efforts. And coming less than a year after its Browning Ferris ruling that established a bold new standard for defining when parent companies are joint employers of subcontracted workers, the Miller & Anderson decision is yet another important step that increases employer accountability to their workers by expanding the responsibilities of joint employers.

Not only does the decision mark an emerging new jurisprudence on labor relations, it also serves to burnish President Obama’s second-term record on labor and worker rights, which includes a rash of bold new policies enacted through executive power.

You can read the decision in this PDF

This is why I have zero patience with anyone voting for Jill Stein. While there’s no guarantee that Hillary Clinton will have as strong a DOL as Obama has since naming Perez to his cabinet, there’s also no question that her NLRB appointees will build on these sorts of decisions to improve conditions for workers. I simply assume that most people who refuse to “compromise their values” by voting for Hillary basically don’t actually care about working class people.

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