Measure Would Forestall a Replay of Biden NLRB’s 2023 Power Grab
From the summer of 2021 until early this year, President Joe Biden’s handpicked pro-forced unionism appointees held full control over the National Labor Relations Board (NLRB).
Throughout these years, they executed a series of power grabs that were clearly designed to help union officials seize monopoly-bargaining privileges over as many workers as possible. And one of the most egregious and destructive of the Biden NLRB’s rulings was issued on October 27, 2023.
Biden-elevated Chairman Lauren McFerran and two Biden-appointed NLRB members declared that, from that day on, franchisors and companies that employ subcontractors and temporary staffing agencies may frequently be regarded as “joint employers” of franchise and subcontractor employees.
This dramatic policy shift was implemented after earlier ping-ponging by the Board. In 2015, the Obama Administration issued a Big Labor- “friendly” joint employer rule. But in 2020, the first Trump Administration restored the traditional definition of “joint employer,” which protects the freedom of small-business employees.
Small Businesses Are Far Less Likely to Cede Workers’ Freedom to Union Officials
Under the traditional definition, remote companies are treated as “joint employers” under federal law only if their actions have “direct and immediate control” on workers’ terms and conditions of employment, as legal commentator Walter Olson has explained.
In contrast, under the Obama-Biden NLRB policy, remote companies may be regarded as “joint employers” if, in Mr. Olson’s words, “they have the power, even the potential power, to significantly influence working conditions or wages at the subcontractor” or franchisee.
The radicalism of this change was greatly amplified by the Biden NLRB’s August 2023 Cemex decision. It aims to make the unionization of workplaces through so-called “card checks,” without a secret-ballot election, standard practice.
National Right to Work Committee President Mark Mix explained:
“Until a decade ago, franchisors had never been regarded as employers of workers at independently owned stores, and employees of subcontractors had only rarely been regarded as also being employed by the company that hires the subcontractor.
“Union bosses long desired to overturn these common-sense understandings.
“They know from experience that small companies are far more likely to stand up to Big Labor pressure and refuse to sell out employees who wish to remain union-free than are large firms.
“Cemex multiplies the windfall. In order to avoid negative publicity generated by union officials and their allies, large corporations could be under heavier pressure than ever before to acquiesce to so-called ‘card checks’ and ‘neutrality’ deals that help Big Labor gain monopoly-bargaining power over employees.”
Measure That Would Protect Franchise, Contract Employees Has Been Introduced
Fortunately, the Biden “joint employer” rule was blocked in court last year. Moreover, this February, Acting NLRB General Counsel William Cowen issued a memorandum pausing implementation of multiple Biden-era rules and policies, including Cemex.
Today, only one of the three pro-forced unionism NLRB members who voted for the 2023 Biden “joint employer” rule remains on the Board, and Trump nominees who will likely be less hostile to employee freedom are being considered by the Senate.
But even when a new quorum is in place, the Trump NLRB likely won’t be able to undo harmful Biden NLRB rulings like Cemex until cases challenging those precedents make their way to the Board. That could potentially take years.
However, legislation introduced in the U.S. House, known as the Save Local Business Act, or H.R.4366, could potentially protect franchise and contract employees from aggressive unionization drives in the near future.
H.R.4366 is sponsored by Rep. James Comer (R-Ky.) and, having passed the committee stage, now awaits, at press time, a vote on the House floor. Mr. Mix emphasized that this bill would ensure that, when franchises and contract companies refuse to corral their employees into unions, remote companies will not face any legal repercussions.
“And if H.R.4366 becomes law,” added Mr. Mix, “it will be effectively impossible for a future pro-forced unionism NLRB to reinstate the Biden NLRB’s skewed ‘joint employer standard’ bureaucratically.”
Outreach to U.S. House offices on behalf of the 2.8 million Right to Work members and supporters nationwide in support of passage of H.R.4366 is ongoing.
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