A formal rulemaking opened by the National Labor Relations Board would reverse an Obama-era decision allowing independent contractors, leased and temporary employees to vote alongside the regular workforce on union representation.
Republican Board Chairman John Ring announced earlier this year that a rulemaking would be opened because of a political tangle that saw the NLRB reverse itself twice in a matter of months.
The Republican-majority struck down the 2015 pro-union decision last December. It had to reverse itself earlier this year when the Democrat NLRB Inspector General and members of Congress accused a Republican board member of conflict of interest (AA, 3-15-18, P. 4).
The rulemaking proceeding opened by the Republican board on Sept. 14 proposes that a firm be considered a joint employer of a another company’s employees only if both share or co-determine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction.
More specifically, to be deemed a joint employer the board would requires an employer to possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner not considered limited and routine.
“The board believes that this rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby promoting labor-management stability, one of the principal purposes of the [National Labor Relations] Act,” the NLRB proposed rulemaking states.
For the most part, the NLRB makes policy by ruling on cases involving employees, individual employers or small groups of employers who face the same issue. Its announced plan to open a rulemaking in this case was slammed earlier by pro-union members of Congress who saw it as a subterfuge to get around the conflict of interest charges.
