The Nation­al Labor Rela­tions Board on Mon­day over­turned a Bush-era stan­dard that said a union could only orga­nize a bar­gain­ing unit of joint­ly employed and reg­u­lar employ­ees if both employ­ers con­sent­ed — even if those employ­ees worked togeth­er close­ly. ​“Joint­ly employed” includes temps who are hired through staffing agencies.

A new rul­ing will enable tem­po­rary and per­ma­nent employ­ees to come togeth­er to nego­ti­ate with their boss­es in mixed bar­gain­ing units.

The new deci­sion allows joint­ly employed temps to bar­gain col­lec­tive­ly in the same unit with the sole­ly employed work­ers they work along­side, rul­ing that boss­es need not con­sent so long as work­ers share a ​“com­mu­ni­ty of interest.”

In a 3 – 1 deci­sion, the Board over­turned a 12-year-old rul­ing in Oak­wood Care Cen­ter, where the Board said that a group of tem­po­rary work­ers could not union­ize with per­ma­nent employ­ees with­out the approval of their employ­er and the appro­pri­ate staffing agency.

In this new rul­ing from Miller & Ander­son, Inc., the Board returns to a stan­dard set in 2000, dur­ing the Clin­ton admin­is­tra­tion, in a case called M.B. Stur­gis, Inc., which was over­ruled in Oak­wood.

Under Stur­gis, and now Miller & Ander­son, per­ma­nent and joint­ly employed work­ers can nego­ti­ate in the same unit if they are employed by the same pri­ma­ry employ­er, and if they share a ​“com­mu­ni­ty of interest.”

In a state­ment announc­ing the rul­ing, the NLRB said, ​“requir­ing employ­er con­sent to an oth­er­wise appro­pri­ate bar­gain­ing unit desired by employ­ees, Oak­wood has … allowed employ­ers to shape their ide­al bar­gain­ing unit, which is pre­cise­ly the oppo­site of what Con­gress intended.”

What the rul­ing means

The rul­ing rep­re­sents a blow to cor­po­ra­tions that have moved force­ful­ly, some­times over­whelm­ing­ly, toward using tem­po­rary work­ers in an effort to block work­er ben­e­fits and col­lec­tive bargaining.

Pro-cor­po­rate enti­ties like the U.S. Cham­ber of Com­merce and the Amer­i­can Staffing Asso­ci­a­tion (ASA) weighed in on the case last year, call­ing for the Board to uphold to the Oak­wood stan­dard and leave intact the employ­er con­sent requisite.

In an ami­cus state­ment, the ASA wrote, ​“Were the board to revert, [it would] … sow uncer­tain­ty and conflict.”

For labor and work­ing peo­ple, the rul­ing rep­re­sents an excit­ing prece­dent from the board. The rul­ing makes it more chal­leng­ing for employ­ers to avoid labor con­tracts by using tem­po­rary ser­vices and removes some obsta­cles for work­ers in nego­ti­at­ing effec­tive­ly with their bosses.

The AFL-CIO, SEIU and the NLRB gen­er­al coun­sel sup­port­ed a return to Stur­gis. Ware­house Work­ers for Jus­tice, a work­er cen­ter in Chica­go, described the deci­sion as ​“a win for all ware­house workers.”

NLRB coun­sel Amy Cocuz­za, in her brief for Miller & Ander­son, affirmed that in mat­ters of col­lec­tive bar­gain­ing, ​“The employ­ers’ con­sent, or lack there­of, should not be a consideration.”