Legal Ease
Federal Regulators Make Life Easier for Unions
By Richard D. Alaniz F
or employers with a union workforce—or a workforce that could unionize—complying with the National Labor Relations Act is an ongoing headache. That headache will only intensify thanks to the National Labor Relations Board (“NLRB”), the federal agency responsible for regulating labor law. In recent months, the NLRB has taken several steps to create a more favorable atmosphere for unionization, by making it harder for unions to decertify and making it easier for temporary workers to join collective bargaining units. In order to stay competitive and remain out of trouble with federal regulators, employers need to understand the current atmosphere, what the new actions mean, and the steps they need to take to avoid trouble with the NLRB.
The NLRB General Counsel Memo On May 9, 2016, NLRB General Counsel Richard Griffin Jr. issued a memorandum that made it more challenging to eliminate unions, even when most employees no longer want to belong to one.
Under current law, unionized
employees may circulate a petition to determine whether there is continued support for a union. If employees get enough signatures, they may petition the NLRB to hold a decertification election.
Alternatively, if the signatures make clear that the union has lost majority support among the workforce, in some circumstances the employees can directly ask the employer to stop recognizing the union.
The NLRB’s
recent memo proposes to do away with the right of employers to withdraw recognition.
According to the memo, the current system for decertifying unions is causing problems. The framework that has been
24 ❘ November 2016 ®
in place for years was developed in a 2001 ruling by the NLRB in Levitz Furniture of the Pacific. NLRB General Counsel Griffin is proposing to do away with employees’ option of directly approaching their employer when it they can prove that the majority of the bargaining unit no longer supports the union. Instead, Griffin would require a formal election to be held by the NLRB before an employer could stop treating the union as the employees’ representative.
NLRB Allows More Temporary Workers to Join Unions Then in July, the NLRB overturned a 10-year-old precedent, making it easier for temporary workers to take part in collective bargaining units and requiring contacting companies to bargain with these employees, even though they often do not actually employ them. In the 3-1 ruling in Miller & Anderson Inc., the NLRB ruled 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 ruling overturns a 2004 ruling in Oakwood Care Center, which found that this type of unit required consent from both employers. In overturning Oakwood Care
Center, the NLRB eliminated the consent requirement and called for a “community of interest” test to decide the propriety of a unit. Community of interest factors can include common functions and duties, shared skills, functional integration, interchange, frequency of contact with other employees, commonality of wages, hours, and other working conditions, permanent transfers, shared supervision, common work location, and bargaining history.
The Miller & Anderson ruling is particularly important for employers because it involves joint-employer relationships, which the NLRB significantly expanded in its August 2015 decision in Browning-Ferris Industries of California. Before the Browning-Ferris ruling, companies were only considered joint-employers if they had “direct and immediate” control over employment matters. Browning-Ferris redefined joint- employment to include employers that may only have indirect or unexercised control over franchisees and contractors’ employment conditions. Browning- Ferris has appealed the NLRB decision.
What Employers Need to Know Now The NLRB’s recent actions put employers in a difficult situation. With the Miller & Anderson ruling, employers must now bargain over employees they “jointly employ,”
not only directly employ.
Temporary employees may have different priorities and interests than full-time employees.
Employers and employees
may also find themselves in a situation where no one wants to continue with the union, but they face major hurdles to eliminate it. Accordingly, employers should take immediate steps to understand the implications these new NLRB decisions might have on their workforces:
• Review contracts with contract and staffing companies
With the help of both inside and outside counsel experienced in labor law issues, employers should review and analyze their contracts with all outside companies that provide labor. After such a review, the company will be better able to understand what any potential risks or liabilities are.
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