The National Labor Relations Board, the main federal labor law enforcement agency, announced Monday that it will force businesses to allow unions that include temporary workers, reversing an earlier prohibition that excluded temps.
The move is the board’s latest action to expand its regulatory reach and make labor organizing easier by expanding its “joint employer” standard.
Previously, temp workers could be part of a union only if the employer consented. That was the board’s decision in a 2000 case called Oakwood, which held that since temps by definition were not regular, long-term employees, the employer was not obligated to recognize their request to be included in a union with its full-time employees.
On Monday in a case called Miller and Anderson Inc. v. Tradesmen International and Sheet Metal Workers, the board reversed itself and said “employer consent is not necessary” in such cases.
“Anyone familiar with the [National Labor Relations] Act’s history might well wonder why employees must obtain the consent of their employers in order to bargain collectively. After all, Congress passed the act to compel employers to recognize and bargain with the designated representatives of appropriate units of employees, even if the employers would prefer not to do so,” the board said.
The five-member board voted 3-1 for the change. The board’s fifth seat is currently vacant. Dissenting member Philip Miscimarra, the board’s lone Republican, slammed his colleagues’ reasoning.
“In today’s decision, my colleagues substantially enlarge the expanded joint-employer platform created by [the 2015 case] Browning-Ferris and require a more attenuated type of multi-employer/non-employer bargaining in a single unit when the multiple business entities do not even jointly employ all unit employees,” he said. “Specifically, my colleagues hold that the board may require two or more businesses to engage in multi-employer bargaining without their consent, even though one of the entities has no employment relationship with some of the unit employees.”
The board’s joint employer standard says that a business can be legally liable under federal labor another employer’s workers provided that both businesses are connected in some way. Historically, the standard required that a business have active, direct control over the other company’s workers. In last year’s Browning-Ferris case, the NLRB said that only “indirect control” was required, vastly expanding the number of potential joint employer cases. Contractors, for example, can be considered to be joint employers of their subcontractors’ workers.
The board is pursuing a case against McDonald’s Corp., saying that it is a joint employer with its franchisees, despite most of the latter being privately owned businesses that essentially rent out the corporate brand. The labor board’s standard would make organizing easier by allowing the unions to target the corporate parent rather than individual franchises.
“The change in precedent is just another example of unelected bureaucrats at the NLRB doing their best to benefit unions at the expense of work choice,” said Trey Kovacs, labor policy analyst for the free market Competitive Enterprise Institute.
Business groups have called on Congress to rein in the labor board. Some Republican lawmakers agree and have pushed for legislation such as the Employee Rights Act to do that.
On Thursday, a House subcommittee approved a draft version of the fiscal 2017 budget for the Departments of Labor, Education, Health and Human Services, which also covers the labor board, that would roll back several of the board’s recent rules changes including the joint employer standard.
