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Labor Board Rules Temporary Workers Get Right to Unionize

By Frank Swoboda

Recognizing the changing nature of the American work force, the National Labor Relations Board has voted to make it easier for millions of temporary workers to join unions and win benefits on the job.

The ruling released Wednesday comes as the nation’s employers increasingly rely on temporary staff to trim costs and gain flexibility. Temps, contractors and consultants who are not attached to a company’s core work force make up as much as 25 percent of the nation’s employment base by some estimates, or nearly 35 million workers.

The number of temporary jobs in the United States rose 577 percent from 1982 to 1998, according to the General Accounting Office, while overall employment grew 47 percent. Manpower Inc., a temp agency, is now the nation’s largest employer.

Analysts said the 3-1 ruling by the labor board will have its most immediate impact on employees of temporary agencies, including Manpower, which send an estimated 3 million people into the workplace on any given day. Although these employees are hired by the temporary agency, the board ruled that for the purposes of labor law they are considered employees of the client company if they work side-by-side with fulltime employees, doing the same work under the same supervision.

The ruling is unlikely to apply to temps who pop in and out of a clerical pool, but rather to workers on longer-term assignments at companies that are seeking to save money on benefits and training.

AFL-CIO President John Sweeney praised the labor board for recognizing the “seismic shifts in employment relationships in the changing economy.” Sweeney called the ruling “an important step” in addressing the rights of contingent workers whom he said have often been “relegated to second-class status and rights” because of their inability to join unions.

But Stephan Bokat of the National Chamber Litigation Center -- which filed a brief in support of employers -- said the ruling would “complicate the way employers deal with employees” as well as eliminate some of the cost advantages of using temporary workers. He said that under the ruling employers would “have to treat [temps] pretty much like regular employees.”

Patrick Cleary of the National Association of Manufacturers said the ruling would give union voting rights “to people with a much more casual attachment to the employer.” He said the decision likely would be tested in court in future cases.

Some unions already were planning to act on the new rule. Judy Scott, general counsel of the Service Employees International Union, said her group would be able to boost its organizing in hospitals that often hire temporary nurses on a long-term basis.

The board’s move is “a great victory for workers,” Scott said, because it would no longer allow employees to artificially separate the two groups of workers. “It doesn’t open the floodgates,” she said, “but it certainly will open a window.”

Challenges to the widespread use of temporary workers have also landed in court in recent years. In one of the more celebrated cases, thousands of current and former independent contractors and temporary workers sued Microsoft Corp., essentially claiming that they deserved the same rights as permanent employees. They won in a U.S. appeals court and the U.S. Supreme Court declined to review the case.

Under a 1990 ruling by the labor board, however, the only way temporary employees could bargain with the leasing employer until now was if both the temp agency and its client company agreed to let them do it. That seldom happened, according to labor experts.

The ruling Wednesday involved challenges to three different employers -- a marine services company, a textile processor and a recycling firm -- that the board has been considering since 1996. In its decision, the board wrote that it had reconsidered its 1990 ruling because of the “ongoing changes in the American work force... including the increased use of companies that specialize in supplying ‘temporary’ and ‘contract’ workers to augment the work forces of traditional employers.”