Since Barack Obama’s handpicked appointees took full control over the National Labor Relations Board (NLRB) in early 2010, they have executed a series of power grabs that are clearly intended to help union officials seize monopoly-bargaining power over as many workers as possible. Today, three months after the Obama presidency concluded, his appointees’ schemes to promote compulsory unionism by regulatory fiat continue.
One of the Obama NLRB’s most egregious and destructive rulings was issued on August 27, 2015. Obama-selected Chairman Mark Pearce and two other radical 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, subcontractor, and staff agency employees.
This radical policy shift was implemented by a 3-2 majority of a bitterly divided board in deciding a case brought by Teamster union bosses against Browning-Ferris Industries (BFI). Prior to this decision, remote companies were treated as “joint employers” under federal law only if their actions had a “direct and immediate impact” on workers’ terms and conditions, as legal commentator Walter Olson explained in a blog post decrying the BFI decision.
In contrast, under the NLRB’s extraordinary current policy, remote companies may be regarded as “joint employers” if, in Olson’s words, they have “the power, even the potential power, to significantly influence working conditions or wages at the subcontractor or franchisee.”
Franchisors often furnish small business owners with uniforms and store designs and set quality standards and operating hours. And many businesses contract with other companies to clean their buildings, provide security, etc. so that they can focus on their core activities. Under decades of NLRB and court precedents, franchisors have never been regarded as the employers of workers at independently owned stores, and employees of subcontractors have only rarely been regarded as also being employed by the company that hires the subcontractor.
Union bosses have long desired to overturn these precedents, because they know from experience that small companies are far more likely to stand up to Big Labor pressure and public vilification and refuse to sell out employees who wish to remain union-free than are large companies. In order to avoid negative publicity generated by union officials and their allies, large corporations have time and again agreed to so-called “card checks” and “neutrality” deals that actually help Big Labor gain monopoly-bargaining power over employees.
And the Obama NLRB’s Browning-Ferris ruling, if it stands, will almost certainly make it far easier for Big Labor to corral employees into unions by exposing remote companies to legal repercussions when franchises and contract companies resist unionization.
Fortunately, over the next few weeks, the U.S. House’s Labor, HHS and Education Appropriations Subcommittee can take a major step towards stopping enforcement of Browning-Ferris and other outrageous Obama NLRB decisions. As the news story linked below explains, early this month a group of 47 House Republicans urged Subcommittee Chairman Tom Cole (R-Okla.) to include provisions in the FY 18 NLRB appropriation to “block the labor board from proceeding with Obama’s changes.”
By wielding its “power of the purse string,” Congress has always been able, in principle, to prevent a rogue NLRB from actually implementing its bureaucratic rewrites of federal labor law. However, this was an uphill battle for Right to Work supporters as long as Barack Obama was in the White House and stubbornly opposed to signing NLRB appropriations with “riders” protecting employees and small businesses from his appointees’ lawless schemes.
Now that avowed Right to Work supporter Donald Trump is President, it should be much less difficult to stop the NLRB from continuing to target employees of franchises and contract companies until Trump nominates and the Senate confirms pro-Right to Work members to fill the board’s two current vacancies and the newly constituted board reconsiders Browning-Ferris and other decisions that are extremely biased in favor of forced unionism.