Monthly Archives: August 2015

UC’s, AC’s, and ULP Procedures Available to Expand NLRB Joint Employer Ruling

Screen Shot 2015-08-31 at 9.12.31 AMKiln, Mississippi    The decision in Browning-Ferris by the National Labor Relations Board clearly means a lot to subcontracted workers as we have discussed and their ability to bring the real power of the company, not their contractor to the bargaining table. The key in organizing new workers will be a deep understanding of the work situation of the potential bargaining unit sufficient to file initially for representation from joint employers, not just the outfit whose name is printed on the workers’ pay stubs.

It is well known that organizing the unorganized is hard and exacting labor already, now bringing in the joint employer will also be easier said, than done. Since the burden is on the union to establish the status, almost invariably without initial access to the contract between the subcontractor and the main company, much of the argument will have to be made based on a detailed understanding of the workplace and its rules. The contract establishing company prerogatives, either exercised or inherent, would not emerge without a subpoena, if there were a hearing, or board demand after the union’s filing of the petition. Under the new rules most of the hearing issues, if there are any as determined by the Regional Director, are after the election, so this will mean a quicker election but sealed ballots, as was the case with Browning-Ferris and the Teamsters, if a hearing is scheduled. This will be interesting.

We know from the decision that the Board has already ruled that any cases pending where petitioners had argued there was a joint employer status would find relief now. But what about subcontracted workers already under contract by unions? What relief do they get from the joint employer decision? Is there even a way to use the ruling to expand the unit already under contract given this new NLRB decision?

The simplest way to go would be to file an Amended Certification of AC petition with the board it would seem to me. According the NLRB’s Rules and Regulations:

The Employer or Union can file an AC Petition (1) to resolve an ambiguity in the description of a certified unit, (ii) to reflect a change in the duties of certain Employees in the unit, or (iii) to reflect a change in the identity of the bargaining agent.

The Browning Ferris decision was silent on existing units, so we are speculating obviously, but, hey, you make your case and take your chances. If it doesn’t work there is always the unfair labor practice route.

Conferring with Doug Young, our excellent Austin-based attorney, it also seemed to us like a unit clarification procedure might work in a situation where the union was seeking to add workers to the bargaining unit and trigger the joint employer status at the same time. A UC-petition, as it is known under the National Labor Relations Act, allows either a company or a union or in some cases both to petition the Board to determine issues like the placement of workers not initially part of the representation certification or decision and direction of election if circumstances changed in the workplace. Importantly, a unit clarification also allows for accretion or adding workers to the bargaining unit if an expansion of job titles or diverse workers had enlarged the unit. A finding that there is a “community of interest” with the existing bargaining unit, would either lead to an automatic accretion if the number of the additional workers is relatively small, often through voluntary compliance or recognition by the employer, or a new election among the added workers or the entire bargaining unit depending on the circumstances. If there is a UC-hearing, then it works just like an RC-hearing if there had been one on the initial filing. The new rules on elections give the Regional Director discretion on whether or not to allow a brief to be submitted by the attorney for the union or the company. That being the case, this process might not be seamless, but it will be quicker than in the past. I bet in the Browning Ferris case that the Teamsters already represented BFI workers and were organizing a new unit of the subcontracted recycling employees. In this situation the union would be going the other way and trying to accrete the primary company employees, especially if a small number like the BFI situation. Maybe a stretch, but still might be good exercise.

The other way to go, and perhaps the surest route, I would think would be simply to make a demand in bargaining that the big boss come to the table to bargain on the issues where they call the shots, and then to file an unfair labor practice 8a5 charge if they refuse to comply. The downside to my knowledge is that nothing has really sped up the ULP procedures. Evidence would be submitted by the union and reviewed by the Region and then “agenda-ed,” as they call it, to determine whether or not the Region will issue a ULP charge against the company, and then barring a company’s voluntary compliance, which I would rarely expect, it would be set for a hearing some, and more likely many, months away before a NLRB Administrative Law Judge, then a decision, then possible appeals, court challenges, etc, etc, etc. I’m not saying that would take forever, but it would absolutely take months, maybe years, so I’m not sure it’s the quickest route, even if it is the most accessible.

On the bottom line we won’t know until unions start jumping in the water and trying to swim.

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Please enjoy A Fragile Tomorrow’s One Way Ticket (Featuring Joan Baez and the Indigo Girls)

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Looking More Closely at the NLRB’s New Joint Employer Standard

10666801h1290937*750xx900-507-0-0Kiln, Mississippi    Lawyers on all sides of the issue will have millions of words and make millions of dollars parsing, arguing, advocating, and appealing the National Labor Relations Board (NLRB) decision to establish a new standard to determine what constitutes joint employer status, but for many workers and, to modify an old expression, the organizers that love them, let’s take a closer look at the actual decision and see what it offers in plain and simple instructions about how to determine whether or not joint employer status exists. Luckily, the decision is written very carefully in the expectation of appeals, so it rewards closer review.

I enjoyed the fact that the NLRB broke through the legal mumbo-jumbo to clearly state in so many words that this was an 800-pound gorilla of a problem too large to continue to ignore. Embedded in the decision is the reality of the modern evisceration of a stable workplace. The Board notes that contingent work now represents 4.1% of total employment in the USA or 5.7 million workers. Temporary employment is 2% of total employment and another 2.87 million workers. On the coasts they can prattle about the new so-called “gig” economy, but the NLRB makes it clear with these numbers that such workers are working without any net of protection or in most situations representation. Without expressly saying so, the NLRB essentially is refusing to continue to support a fiction that unions have any practical or proportionate power at the bargaining table, despite there being a long standing standard for how unions can organize temporary workers that determines the bargaining unit based on an average of hours worked over succeeding 13 week periods averaging the required minimum hours in that period to not be considered casual, but to be determined as employees, albeit temporary.

As we have frequently noted, the new standard elevates indirect control and authority, even if not explicitly exercised, to the status of joint employment. In determining under the new standard whether or not a company is a joint employer with their subcontractors of course setting wages and hours is the brightest line. The NLRB adds to those potential tests the question of whether or not the company establishes the number of workers on the job, has input or authority around scheduling, seniority, overtime, or assigning work and standards. The examples in the decision not only from the Browning-Ferris case under review but also others that are mentioned are very helpful, and include, not surprisingly, examples of how building owners effectively control the janitors working for cleaning companies.

These examples add other “tests” worth listening for including when a contractor recommends discipline or termination of individual workers, rules mandating that a subcontractor worker cannot be paid more than the contractor’s own employees doing similar work, determining when the machines operated by the subcontractor workers turn on or off, and drug, professional, and other testing requirements for subcontract workers. All of these conditions were evident in this BFI recycling case, but many organizers will also recognize many of them as common in representative situations. I can’t even count the number of grievances we have handled in buildings, on garbage trucks, in university cafeterias, school yards, and elsewhere where Local 100 is opposing a termination in the final step and being greeted by a shrug from an employer that the property owner had demanded the action for one reason or another so what choice did they have other than to do what the real boss said or lose the contract. Where there are multiple locations, it often has meant that we agree to reassign the worker away from a problematic worksite or supervisor. I will never forget winning a case for a worker years ago at Tulane University where a Tulane administrator wanted a young woman fired because she didn’t smile enough on the cafeteria line. On that one Tulane had to eat it, so to speak, and she became an outstanding steward for us and a union organizer who had great success in organizing California home care workers for several years.

Franchisee operators can sweat this new decision, but they are not mentioned anywhere. The real beneficiaries immediately are these millions of workers in contingent and temporary employment who are little more than working scams where someone bigger wanted to sweat the same work down to lower wages, less liability and workman’s compensation. The decision changes the game allowing the union, if and when there is one, to force the real employer to the table to bargain on those issues where they have or are exercising control.

As long as it lasts, we’re catching a major break for millions of workers here, if we’re willing and able to do the work to get them organized.

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