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NFIB Pushes Back Against the Big Labor Agenda

Date: June 23, 2015

The National Labor Relations Board

NFIB is greatly concerned about the pro-labor policies the National Labor Relations Board has put forward. NFIB is fighting both in Congress and the courts to make sure the NLRB fulfills its original mission to be an impartial moderator between businesses and unions. Small businesses expect their government to act fairly and not tilt the playing field against the private sector.

Ambush Elections

Despite Congress refusing to pass card check legislation, it seems clear that the NLRB is intent on implementing card check through regulation. The Board’s new “ambush” election rule will significantly undermine an employer’s opportunity to learn of and respond to union organization by reducing the so-called “critical period”  from petition filing to election, from the current average time of 38 days to as few as 21 to 31 days. 

With this new rule, NFIB believes that employee informed choice will be compromised. Due to the shortened time frame small business owners will have to scramble to obtain legal counsel and will have little time to talk to their employees. This shortened time frame would hit small businesses particularly hard, since small employers usually lack labor relations expertise and in-house legal departments.  

The 114th Congress has introduced S.J. Res. 8, a Congressional Review Act resolution of disapproval of the ambush election ruleNFIB Key Voted S.J. Res. 8 in the Senate and it passed the Senate  by a vote of 53 to 46. NFIB is also a member of the Coalition for a Democratic Workforce and has filed suit against the NLRB over the ambush election rule.

Challenging Recess Appointments

NFIB is challenging the constitutionality of President Obama’s recess appointments of three individuals to the NLRB. The President’s actions circumvent the Congressional appointment process by ignoring the Senate’s constitutional power to advise and consent appointments to place new members on the Board.


Joint Employer Standard

The National Labor Relations Board (NLRB) is considering overturning the existing joint employer standard. The current standard has been in place since 1984. Under this standard, an entity is a joint employer if it exercised direct and immediate control over another business’s employees, including having the ability to hire, fire, discipline, supervise or direct an individual. Entities are joint employers only when they share that direct control over the terms and conditions of employment for the same employees. Currently, franchisors, franchisees (independent businesses), and subcontractors operate as separate businesses.

A case currently before the NLRB (Browning-Ferris Industries) could expand the joint employer standard to include indirect control over another business’s employees and employment decisions. Therefore, a franchisor would have control over a franchisee’s employment decisions, and a business hiring a subcontractor would essentially be taking on all of the subcontractors’ employees as their own. They would no longer be separate businesses. 

Poster Rule

The NLRB issued a rule requiring nearly all private-sector employers to hang a poster notifying employees of their rights to unionize. While there is no fine for failing to post this notice, it may be construed as an unfair labor practice by NLRB if someone files a complaint. Any person may file a complaint (regardless if they are an employee or not) with the NLRB. 

NFIB has filed a lawsuit charging that the NLRB’s rule is an overreach of its authority under the National Labor Relations Act. NFIB’s lawsuit has forced the NLRB to delay its enforcement of the rule until April 30, 2012.


Right-to-Work 

H.R. 2587 would prohibit the NLRB from closing, relocating or transferring employment of private companies. This bill is in response to the NLRB’s efforts to prohibit The Boeing Company from opening a new plant in a right-to-work state. By attempting to prohibit a company from choosing where to locate a new facility, the NLRB’s actions seriously jeopardize economic growth and job creation. Federal bureaucrats should not be making business decisions for private employers.  

NFIB strongly supported H.R. 2587, which passed the House of Representatives and is awaiting action in the Senate.

Victory Update:  On December 9, 2011, the NLRB finally decided to withdraw their suit against Boeing.


Micro-unions

The NLRB recently ruled in favor of micro-unions for nursing homes and other long-term healthcare facilities. This allows unions to organize mini-bargaining units throughout a business based on job description. While this doesn’t allow all industries to form micro-unions, it opens the door and sets a dangerous precedent. If this rule is applied to small businesses, the results could be devastating. For example, in a grocery store, cashiers, baggers, stockers, warehouse workers, meat department workers could all be unionized in separate unions. This would create additional expenses and significant administrative burdens for small businesses.

H.R. 3094, the Workforce Democracy and Fairness Act, addressed both the ambush election and micro-union issue. NFIB supported the bill which passed the House of Representatives and is awaiting action in the Senate. 


Card Check Agreements

NFIB opposes efforts to make it easier for unions to organize within small businesses by mandating card-check agreements instead of private-ballot elections.


Department of Labor

Persuader Rule

DOL has proposed a rule that would limit employer communication with employees regarding union elections. The proposal would require public disclosure of communication between employers and their attorneys regarding union matters. This rule violates attorney-client privileges and will have a chilly effect on employers who want to communicate with their employees prior to a union election. 

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