The National Labor Relations Board (NLRB)
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.
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 rule. NFIB 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.
Joint Employer Standard
In August 2015, the National Labor Relations Board (NLRB) overturned the joint employer standard that had been in place since 1984. Under the old standard, an entity was 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 were joint employers only when they shared that direct control over the terms and conditions of employment for the same employees. Franchisers, franchisees (independent businesses), and subcontractors operated as separate businesses. The case decided by the NLRB (Browning-Ferris Industries) expanded the joint employer standard to include indirect control over another business’s employees and employment decisions.Therefore, now a franchiser could have control over a franchisee’s employment decisions, and a business hiring a subcontractor could essentially be taking on all of the subcontractors’ employees as their own. They could no longer be considered separate businesses. NFIB supports S. 2015, the Protecting Local Business Opportunity Act and H.R. 3459, the Protecting Local Business Opportunity Act. This legislation would restore a reasonable legal standard for determining joint employer status.
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.
Department of Labor (DOL)
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.
- Download NFIB's House Key Vote Letter
- Download NFIB's Senate Key Vote Letter
- Download NFIB's letter in support of Sections 113, 407, and 408 in the FY2016 Labor, Health, and Human Services, Education, and Related Agencies Appropriations Act
- Download NFIB's letter in support of HR 1768, the Workforce Democracy and Fairness Act
- Download NFIB's letter in support of S. 2015, the Protecting Local Business Opportunity Act.
- Download NFIB's letter in support of H.R. 3459, the Protecting Local Business Opportunity Act.