On February 26, 2020, the National Labor Relations Board (“NLRB”) published its final joint employer rule in the Federal Register, which tightens the test used to analyze whether workers are jointly employed by affiliated businesses. The final rule is intended to roll-back the stricter Obama-era standard that business interests have longed to overturn.
History of Joint Employer Rule
Under longstanding NLRB precedent, two employers could be joint employers if they shared or codetermined matters governing the employees’ essential terms and conditions of employment. Until 2015, to be a joint employer, a business had to exercise “direct and immediate” control over these employment matters
Then, the Obama-era NLRB overruled the old standard in its decision in Browning-Ferris, and substantially relaxed the standards for proving joint Continue reading
By: Kara M. Maciel and Lindsay Smith
On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval. Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”
The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading
What should come as no surprise to any management or labor attorney, the National Labor Relations Board (NLRB) has stated that union elections are taking place twice as fast under the new NLRB Representation Case Rule changes, also known as the “ambush election” rules.
As reported by Politico’s Morning Shift today and according to an NLRB PowerPoint presentation collecting relevant data, the median time between the filing of an election petition and an NLRB-directed election was 32 days, a decrease from 67 days during the same period in 2014. In addition, the median time between the filing of an election petition and the pre-election hearing was 9 days, a decrease from 13 days.
Interestingly, despite the compressed time from petition to election, the unions are not winning elections in higher percentages. According to the NLRB’s data, since April 2015 when the election rule took effect, unions won 68.8 percent of elections, compared to 69 percent during the same period in 2014. The number of petitions filed is also unchanged: 1,446, compared to 1,442.
This begs the question whether the ambush election rules are hurting employers, or whether employers have taken heed and begun preparing for any organizing well before any petition is filed. It also leaves open the question whether labor unions have changed their strategy to file more election petitions in light of the new rules, rather than relying on card check and neutrality agreements as they have for the past several years. In New York City, for example, the Hotel Trades Council filed election petitions at 4 hotels in Manhattan over a few short months this summer, and won each of those elections with a large majority. The bargaining units were relatively small – less than 50 employees at each hotel – and focused primarily on room attendants and housemen.
Despite the NLRB data, in speaking with my contacts and fellow labor attorneys, we are all seeing a significant uptick in representation petitions across all industries and across the country, which means that employers must be prepared to respond to a petition before any organizing campaign can occur. Management training and understanding the rules of the game well in advance could be the game-changer in how elections are won under the new rules.
Now that the NLRB’s ambush election rules have taken effect and labor unions are able to take advantage of the significantly shortened time frame from the filing of a representation petition to the election, it has been questioned whether labor unions will continue to engage it its prior “corporate campaign” tactics to organize new workplaces. As employers have experienced from several different unions in the past decade, including UNITE HERE, UFCW, SEIU and others, labor organizers attack the corporation from outside threats in its attempt to persuade the employer to sign a card check or neutrality agreement, rather than resort to the traditional secret ballot election procedure. It’s akin to a death by a thousand cuts, and labor unions have found more success in organizing employees. One of the corporate campaign tactics includes involving outside regulatory state and federal agencies to investigate the workplace for potential regulatory violations.
In this post by my partner, Eric Conn, he explains how labor unions have accompanied OSHA investigators during on-site inspections, even in non-union workplaces, and what employers can do when presented with labor representatives.