July 13th, 2016
WSJ Editorial: A Brave New Workplace
The hits keep coming from the National Labor Relations Board, which on Monday released a new job-killer app that builds on its destructive joint-employer standard. The 3-1 majority’s decision in Miller & Anderson, Inc. overturns the board’s 2004 precedent that required a union seeking to represent workers at a supplier and contracting firm to obtain the consent of both employers. Unions will now be able to easily combine workers solely employed by one business with those joint-employed by another, thereby increasing their negotiating leverage.
Likewise, firms that use temp agencies or subcontractors (e.g., cleaning, security, hospitality) could be required to collectively bargain with workers that they use only for short durations. Even after the temp workers leave, the company is stuck with the union and its labor contract.
Miller & Anderson compounds the confusion created by the NLRB’s Browning-Ferris ruling that has redefined employer relationships across the economy. Businesses that utilize temp agencies, contract out services or maintain franchise relationships may now be branded joint employers if they exercise “indirect” control over workers.
Several firms that use the same supplier might be required to negotiate benefits and wages for their competitors’ employees, which ought to qualify as an antitrust violation. The union goal is to discourage businesses from using temp agencies and subcontractors. However, the result will be a less flexible workforce. Unions also want to be able to play businesses against one another in bargaining.
Miller & Anderson can’t be appealed in the courts because no workers have been employed in the original multi-employer bargaining unit for three years. The NLRB usually dismisses moot cases, but it wanted to use Miller & Anderson to rewrite labor law. Mission accomplished.
Read the full article here.