Feds Rule Unions No Longer Need Consent To Combine Workplaces

By Connor D Wolf

07/17/2016

Federal labor administrators made it easier for unions to organize multiple workplaces as a single unit by ruling they don’t first need consent from employers.

Labor unions can now combine employees from different companies so long as they have a shared community of interest. Community of interests can be found when companies have a joint-employer relationship or contract with workers. The National Labor Relations Board (NLRB) claims its Monday Miller & Anderson, Inc. ruling simply returns to an older standard, but critics aren’t convinced.

“The importance of this case is magnified by the NLRB’s new joint-employer standard,” Workforce Freedom Initiative Vice President Glenn Spencer told The Daily Caller News Foundation. “To Simply say this just goes back to the ways things were is not quite correct because things aren’t the way they were in the first place.”

A case involving Browning-Ferris Industries allowed the board to overturn decades of established labor law Jan. 12, making it easier for companies to declare joint-employer status. Businesses had to show direct control over wages, hiring practices and other employment practices. The new standard now considers indirect control, which is common in contractual relationships.

“This is doubling-down on the 2015 Browning-Ferris decision,” Competitive Enterprise Institute Labor Policy Expert Trey Kovacs told TheDCNF. “But now under the Miller & Anderson decision, the union can organize the contractors and temp workers at a company at the same time.”

The NLRB has gone back and forth on the employer consent issue over the years. The 2000 case involving Sturgis, Inc. allowed unions to combine workplaces without consent, but a 2004 case involving Oakwood Care Center has since required unions to get consent. Spencer adds the decision doesn’t return to the older standard since it’s now much easier for companies to declare joint-employers status.

“We hold today that Sturgis is more consistent with our statutory charge than Oakwood,” the board noted in its decision. “Accordingly, we overrule Oakwood and return to the holding of Sturgis. Employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer.”

The NLRB can now declare two or more companies as joint-employers on a seemingly case-by-case basis. A company declared a joint-employer becomes liable for the employees and labor disputes of the other company it contracts with. The Miller decision furthers the burden on employers by allowing unions to combine joint-employer workplaces as a single unit.

“If there’s a joint-employment relationship then this decision says that unit can be formed whether both employers agree or not,” Spencer continued. “Where the employer previously argued that would constitute a multi-employer unit which would require them to jointly agree whether to allow this unit. This decision tends to obliterate that boundary.”

The NLRB has defended its new joint-employer standard by noting corporations oftentimes have too much control over the smaller companies they contract with for them to be considered their own independent operations. Kovacs warns companies could be deterred from contracting out or using temporary workers, which will decrease employment opportunity.

“They are going to be very selective on the temporary work options they use,” Kovacs added. “Maybe they’ll just give more overtime instead of using temp workers.”