Unionizing the Contingent Workforce: Squaring the NLRB’s 2004 Decision in Oakwood Care Center with the United States’ Obligations as a Signatory to the International Labour Organization

I. INTRODUCTIONEconomic liberalism has increased emphasis on contingent employment, resulting in a sizable departure from the traditional long-term employment model that has been of significant legal and social consequence for international industrial relations.1 Considerable scholarship illustrates the amplified use of temporary employment by multinational corporations struggling to adapt in the globalized industrial complex.2 While alternative labor arrangements offer management a host of strategic benefits, antiquated domestic labor law is statutorily under-inclusive of temporary workers, often failing to afford the most fundamental employment rights to this vulnerable and burgeoning sector of the workforce.3 Given the incongruity between the employment relationship that the National Labor Relations Act ("the Act")4 assumes and the nuanced 2 3 4 employment relationship that practically exists, temporary workers elude protective regulation under the Act, often performing the same work as long-term workers without the same benefits and safeguards. Common features of contingent work include uncertainty as to employment duration, ambiguity regarding which employer determines the terms and conditions of employment, low wages, inadequate benefits, and, most important for purposes of this comment, crippling legal and practical obstacles to joining trade unions.5Particularly salient is the National Labor Relations Board's ("NLRB" or "the Board") 2004 decision in Oakwood Care Center ("Oakwood"), wherein a three-member majority interpreted Section 9(b) of the Act to read that a bargaining unit incorporating both temporary workers supplied by a "supplier employer" (that is, a private employment agency) and the user employer's core employees is statutorily impermissible absent consent of both the user and supplier employers.6 The consequences of Oakwood on domestic labor law are two-fold. First, by conditioning the legality of the arrangement on employer consent, Oakwood imposes upon temporary employees an elevated burden to accessing collective representation guaranteed by Section 7 of the Act.7 Further, the decision simultaneously affords employers an unqualified constructive veto on a temporary worker's right to unionize such that an employee otherwise capable of satisfying the elevated burden may still be barred from membership arbitrarily and without just cause.8 Oakwood is not without its detractors, however, and in June 2013 an NLRB regional director ordered an election among temporary workers over calls to dismiss the petitions pursuant to the Board's holding in Oakwood.9Domestic confusion regarding proper legal treatment of the contingent workforce does not, however, exempt the United States from obligations under the international labor law framework.10 As a signatory to the International Labour Organization ("ILO"), the United States has, on the basis of membership alone, undertaken a 8 9 10 binding commitment to guarantee unobstructed associational and collective rights to all workers pursuant to ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organize ("Convention No. 87").11 This comment attempts to reconcile the Board's decision in Oakwood with the ILO's command that all workers, without distinction or discrimination whatsoever, shall have the right to establish, join, and structure unions of their choosing without previous authorization.12Part II of this comment surveys the organizational structure and substantive mandate of the ILO, and comprehensively reviews ILO Convention No. 87.13 Part II then reasons through the Oakwood decision and clarifies the Board's inconsistent application of Section 9(b) of the Act to temporary workers in M.B. Sturgis, Inc. and Lee Hospital.14 Part III comparatively analyzes Convention No. 87 with 11 12 13 14 the Board's 2004 ruling in Oakwood, ultimately concluding that the decision is textually and jurisprudentially inconsistent with the United States' obligations under the ILO. …