A ruling on sheet metal workers may affect hospital nurses, technical staff, and perhaps even physicians.

July 22—Experts say a National Labor Relations Board (NLRB) decision on a case involving sheet metal workers at a construction site could have profound implications for temporary workers in healthcare settings.

The Sheet Metal Workers International Association petitioned in 2012 to jointly represent both the sheet metal workers employed by a company called Miller & Anderson plus those supplied by the Tradesmen International staffing agency.

By a 3-1 tally, the NLRB voted July 11 to allow both sets of workers to bargain collectively as a single unit without the consent of both employers. The decision overturned precedent established by a 2004 case involving employees and temporary staff at a 280-bed long-term residential facility.

The board remanded the specific case back to the NLRB’s office in Baltimore for action, but the new policy could have an immediate and lasting impact.

Common Labor Ground

Although sheet metal work may seem to occupy a realm far away from health care, the American Hospital Association (AHA) and Federation of American Hospitals (FAH) saw enough common ground to jointly file an amicus brief in an attempt to persuade the NLRB from making the ruling that it did.

“Both AHA and FAH have a vested interest in the outcome of this matter,” the two associations stated in the brief. “Contingent workers—defined broadly as individuals who work at the hospital but who are employed by another entity—play a vital role in the delivery of patient care and other services that AHA’s and FAH’s member hospitals provide. Hospitals, for example, may rely on traveler nurses supplied by third-party agencies to help provide uninterrupted medical care during spikes in patient census that are difficult to predict.”

The brief described how hospitals often contract out highly specialized services such as anesthesiology or those “unrelated to their core mission,” such as food service or building maintenance. But both groups work side by side, even though one set is paid by the hospital while the other is “compensated by the agency that supplies them.”

The AHA and FAH also noted that the interests of the two groups may diverge sharply, making bargaining with them “exponentially more difficult” and increasing the risk of disruptive labor disputes.

More Vetting, More Recruiting

“Staffing companies have already been under the gun,” said Kate Bischoff, an employment attorney in the Minneapolis office of Zelle LLP. She added that with this decision, employers likely will spend even more time vetting prospective agencies.

Bischoff said she’s been advising clients to boost their human resources department and expand their own recruitment efforts. This approach includes creating a roster of “on-call” part-timers who can fill in when additional staff is temporarily needed.

G. Roger King, senior labor and employment counsel for the HR Policy Association in Washington, D.C., said the decision will add another layer of “pre-negotiation” between companies described as “user employers” and their staffing partners, known as “supplier employers,” before they even start to bargain with employees who work for both of them.

King noted a growing feeling in some sectors that large corporations have used staffing agencies as a way to decrease wages and benefits, but added that the NLRB decision is at odds with the growing “gig economy” of independent workers who work only when they want.

In health care, Bischoff and King said many will be looking to see how nurses respond to the new rules, but King added the ruling may awaken unionization efforts among IT professionals and maybe even employed physicians.

Practical Problems

Although it may become more difficult for hospitals to fill temporary workforce gaps, the new rules don’t necessarily make union organizing any easier, according to King.

“There are so many so many practical problems here, this may not be particularly fertile ground for unions,” King said. “Temporary workers are hard to organize, they’re not always at the workplace, they may not be easy to reach, they may have less interest in organizing—so how do you harmonize their interests with the user’s employees’ interests?”

On the employer side, King noted that employees of the staffing companies are typically not recruited, hired, trained, or evaluated by the hospital at which they will work. That may have to change, King said, and hospitals will have to be more strategic about choosing staffing partners and more sophisticated about seeking counsel from human-resources attorneys.

At least one group will find this decision to their liking, King noted.

“Labor law professors will enjoy this decision for discussion purposes, for sure,” King said. "But unions and employers? Not so much.”

Andis Robeznieks is a freelance writer based in Chicago. Follow Andis on Twitter at @AndisRobeznieks.

Publication Date: Friday, July 22, 2016