American Workers Must Not Be Treated as a Pinata by Unions and Government Agencies

In June 2018, the Supreme Court removed the burden of mandatory payment of union dues by public employees.  Until then, public employees had been forced to pay at least a “fair share” portion of dues related to union costs for employee grievances and physical safety.  A  Supreme Court decision in 1977, known as Abood v. Detroit Board of Education had already removed the obligation for nonunion public employees to pay the portion of dues related to the union’s political activities.

Since most public sector unions aggressively promote hard left political candidates and policies, mandatory dues for union’s political activities infringe on many workers’ first amendment rights. Supreme Court Judge Alito found that mandatory dues were not in the worker’s interest and the fair share dues represented a “considerable windfall that unions have received under Abood for the past 41 years.”

Union backlash claims the Supreme Court decision was based on a “bogus free speech argument” that hurts some unions financially and that the decision “will serve to make unions and their members more militant and force a stronger culture of internal organizing.”   That threat could be read as a pledge of stronger bullying during union organizing.

In December 2017, the National Labor Relations Board (NLRB) issued a Request For Information on whether new regulations governing “ambush elections” for union organizing should be amended.  The regulations supporting quickie elections were approved while the NLRB board was under left-leaning control.  Most management parties say ambush elections do not provide adequate time for “due process” involved in litigating important issues.  Unions claim the new regulations fix a system that allowed employers to delay representation. Surely a reasonable notice period can be chosen.

The NLRB has a history of ignoring the interests of workers. In 2011, Boeing proposed a new aircraft manufacturing facility to be located in South Carolina.  The plant would add capacity that Boeing needed to accommodate the expected surge in demand.  An abundant labor force available in South Carolina had the skills and work ethic that suited Boeing’s needs.  However, Boeing’s union in Washington state vehemently opposed the new, non-unionized facility.

The NLRB alleged that Boeing chose South Carolina in retaliation for strikes by unionized workers at its existing facilities in Washington state and the NLRB tried to block Boeing’s moves into South Carolina.  During the political tiff, NLRB revealed how deeply unions control its policies when it dropped its objection as soon as Boeing obtained union agreement in return for a promise to build the 737 Max airplanes in Washington state. The objections were rooted in union money, not principles.

“Joint employer” is an issue of high importance to franchise holders and their employees.  Under “joint employer,” both the franchise holder and the franchisor are considered to be employers of the employees. For example, under joint-employer a McDonalds restaurant operator and the McDonalds corporation would both be considered employers – and both entities and the employees would be subject to labor laws governing labor relations such as unionization, wages and benefits.  That makes management of the workforce both more expensive and more complex. Until President Trump’s election victory, the NLRB favored the “joint employer” regulatory thicket, but recently the NLRB attempted to soften the conditions under which “joint employer” applies.

In September 2018, the NLRB issued a Notice of Proposed Rulemaking on its joint-employer standard. The standard says an employer may be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.

The NLRB now says its intent is to avoid drawing third parties, who lack an active role in deciding wages, benefits or other essential terms and conditions of employment into a collective-bargaining relationship for another employer’s employees.  Of course some unions and many left-leaning elected representatives favor the more restrictive standard.  If the NLRB’s proceeding succeeds in adopting the more streamlined standard, many franchisers and their employees will be better off.

There are many more upcoming regulatory battles the NLRB will face on behalf of employees.  The freedom to operate as independent contractors seems annoy many government agencies and unions who prefer workers lose independence and instead be subject to wage, benefit, payroll withholding, and union representation. Those issues will heat up as ever-larger portions of the workforce become self-employed.

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