As I detailed here last week, in a case involving Browning-Ferris Industries, the National Labor Relations Board decided to greatly expand when an employer is responsible for another employers’ employees. By overturning decades-old precedent, the NLRB decision threatens jobs across the country and disrupts thousands of successful business relationships. But, unfortunately, the NLRB is not done interfering with common labor arrangements across the country.
Until September 30, the NLRB is inviting amicus briefs to address issues raised in Miller & Anderson. The Board asks whether it should overturn precedent established in Oakwood and allow employees to organize mixed bargaining units that include solely employed employees and jointly employed employees.
Amy Cocuzza submitted the brief on behalf of the NLRB’s Office of the General Counsel and it shines a light on how the Board members are likely to ultimately rule. Cocuzza’s brief makes two primary arguments on why Oakwood should be overturned: 1) the current precedent unnecessarily constricts employees’ statutory right to self-organization, and 2) the changing employment landscape and increase in contingent workers.
Under Oakwood, temporary or contingent workers may not be included in a bargaining unit with employees of the user company employing these workers without the consent of both the user employer and the labor supplier employer.
Cocuzza argues that this standard infringes on workers’ right to self-organization and employees should not need employer consent to form a mixed bargaining unit. However, obvious problems arise when a petition is filed to organize employees at two different employers.
Employees at different employers have “competing interests.” A common divergence would be on how wages are allocated. It is easy to imagine a union setting aside the interests of jointly employed employees in favor of solely employed employees, or vice versa depending on which group of employees made up a larger share of the bargaining unit.
This happens in bargaining units with only one employer. Take for example General Motors and UAW adoption of a two-tier wage system. The system put aside the interests of less tenured employees in exchange for benefits obtained for more experienced employees, even though tier 1 and 2 employees perform similar work.
Besides, employees at different employers having distinct interests in negotiations. A situation could arise where only jointly employed employees desire unionization and solely employed employees resist union representation, or vice versa. And if the group of employees in support of unionization outnumbers the other by a large enough margin, then all employees will have union representation foisted upon them whether the workers like it or not. Under that scenario, it does not seem that workers are really afforded their right to organize, in addition to their equal, though less talked about, right to refrain from doing so. A group of employees at one employer should not lose their rights to decline union representation because of the desires of employees who work for a separate employer.
The NLRB general counsel’s argument that the changing employment landscape is reason to overturn precedent also holds little water. The NLRB’s brief characterizes temporary or contingent workers as an underclass: one that receives less pay, no employer-sponsored healthcare, and stripped of their Section 7 rights—their right to organize or refrain from doing so under the National Labor Relations Act.
The American Staffing Association’s brief rebuts the NLRB’s concerns. Citing a report from the Department of Labor’s Commission on the Future of Worker-Management Relations, there are many ways employees benefit from contingent work: independence, flexibility, supplemental income, skills training and opportunity to find work. In addition, most staffing firms “either extend [health care] coverage [under the Affordable Care Act] or pay any applicable penalties.”
Even if the issues raised by the NLRB’s General Counsel Office were valid, the NLRB has not been granted the power to direct elections of bargaining units consisting of more than one employer unless both consent. As the majority in Oakwood point out:
Thus, the text of the Act [NLRA] reflects that Congress has not authorized the Board to direct elections in units encompassing the employees of more than one employer. The legislative history supports this interpretation of the plain language of the Act.
Simply, this is just another effort by the unelected bureaucrats at the Board to ease union organizing drives at the expense of worker choice and the free flow of commerce. The NLRB has already greatly expanded the definition of “joint employer” and now is looking to double-down on that decision to benefit unions.