Law 360: Lawmakers Urge Rollback Of NLRB Rulings


Law360, New York (April 6, 2017, 8:03 PM EDT) — Dozens of congressional leaders on Thursday sent a letter to the U.S. House of Representatives Committee on Appropriations, asking for a rollback of various National Labor Relations Board decisions from the past couple of years, saying that the decisions are flawed.

Chairman of the House Workforce Protections Subcommittee Rep. Bradley Byrne, R-Ala., led the charge in sending a letter asking the Appropriations Committee to address three particular labor issues that the NLRB has faced, including a joint employer standard and “ambush” elections. Nearly 50 lawmakers signed the letter, including Glenn Thompson, R-Pa., Kevin Brady, R-Texas, Tom McClintock, R-Calif., and Rick Allen, R-Ga.

“Recent decisions by the National Labor Relations Board have fundamentally altered long-standing labor policy in our country and made it harder for workers to advance,” Byrne said in a statement. “It is critical that we use the annual government funding bills to advance common sense policy ideas that help roll back overreach and instead empower American workers. We need more fairness and certainty in the workplace, not less.”

The letter first encouraged the Appropriations Committee
 to address the case known as Browning-Ferris Industries of California Inc. and the labor board’s 2015 decision to loosen the traditional test it uses to determine whether a company qualifies as a joint employer. The letter said that although the joint employer standard used to define joint employers only as those that have direct or immediate control over the “most essential” conditions of employment, the new standard says that control need be only indirect or potential

“This exceptional deviation from the well-settled law creates an immense amount of liability for any business that incorporates a franchisor-franchisee model, enters into a contract agreement for services or otherwise depends upon a nontraditional workplace arrangement for success,” the letter read.

The letter also asked the committee to address an NLRB decision that shortens the time between the filing of a certification petition and the actual conducting of an NLRB secret ballot election, saying that this practice “ambushes” employees and restricts employers’ abilities to provide workers with the time to formulate a decision prior to an election.

The letter additionally said that unintended consequences have continued to hurt the relationships between employees and employers since a 2011 board decision that altered union organizing rules by allowing unions to “gerrymander bargaining units.” The letter said that “micro-unions” have come up through the capacity for unions to solicit an individual department or work shift to organize.

“On a larger scale, the ruling has a profound effect upon each of the estimated 6 million workplaces covered under the [National Labor Relations Act], as businesses now face the possibility of having to manage multiple bargaining units of similarly situated employees with increased changes of work stoppages, and even the potential for differing pay scales, benefits, work rules and bargaining schedules,” the letter read.

A representative for the NLRB did not immediately respond to a request for comment on Thursday.


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