NLRB Overturns Precedent, Makes Organizing Two Workplaces At Once Easier

In a case involving Browning-Ferris Industries, a National Labor Relations Board (NLRB) decision overturned longstanding precedent regarding joint employer status—when two employers in a contractual relationship assume joint liability and bargaining responsibilities over certain employees.

Simply, the NLRB’s new joint employer standard makes it much more likely that a joint employer relationship, and the liability that goes along with it, is found. This unnecessarily exposes thousands of businesses to increased liabilities, creates roadblocks for entrepreneurs and will reduce certain job opportunities. 

But, unfortunately, the NLRB is not done interfering with common business arrangements. Today, the Board overturned another precedent established in Oakwood that is related to the joint employer standard.

In a press release, the NLRB announced:

The decision [Miller & Anderson] holds that petitioners seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain employer consent.

The majority held that petitioned-for units combining solely and jointly employed workers of a single user employer must share a community of interest in order for a single unit combining the two to be appropriate.

The NLRB argued that the Oakwood standard infringes on one of the primary tenets of the National Labor Relations Act—workers’ right to self-organization—and that requiring employer consent should not be necessary.

But as I explained in a previous post, doing away with employer consent may strip employees of the very rights that the NLRB purports to protect:

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.

In the above scenario, some workers are stripped of their right to self-organize, forced to pay union dues and bargaining responsibilities are foisted on an unsuspecting employer. 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 only beneficiaries of overturning Oakwood are labor unions that gain more members—and more compulsory dues.

With the new and expansive joint employer standard created in Browning-Ferris, it is far more likely for two distinct employers to be considered joint employers—even if no such relationship exists. Therefore, more and more situations will arise where a union will leverage the policy change created in Miller & Anderson to organize two workplaces as one when that would not have been possible before the Board greatly expanded its joint employer standard.

This 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.

However, in a bit of good news on the labor and employment policy front, Congress is aware of the harm to the economy and workers over at the NLRB. A policy rider has been included in the Labor, Health and Human Services appropriations bill to defund the enforcement of the NLRB’s joint employer standard.

Before the appropriations bill goes to the floor of the House, another rider should be added to do away with the policy created in the NLRB’s decision in Miller & Anderson.