Trade Groups Seek to Address Issues with National Labor Relations Board

FEBRUARY 16, 2017

Over 50 businesses and trade groups — led by the National Restaurant Association, the National Retail Federation and the International Franchise Association — want Congress to take swift legislative action to repeal the National Labor Relations Board’s (NLRB) “joint employer” standard.

In a letter to the House Education and Workforce Committee, the groups say the NLRB’s joint-employer rule change under the Obama administration exposes a broad range of businesses to liability for another employer’s actions in a workplace, including for workers they do not employ. The House panel is conducting hearings on how to make the NLRB fairer.
The NLRB announced a new test for determining whether an entity is a joint-employer in its 2015 Browning-Ferris Industries decision. Under this decision, if both employers co-determine the essential terms and conditions of employment, then both may be considered an employer.

With the change in administrations and Congress, business groups are looking to restore the historical management-labor balance at the NLRB that was severely tilted toward organized labor by the Obama administration.

Beyond concerns about the joint-employer standard, the NLRB’s “ambush election rule” — that significantly altered the timeline for unionization efforts — is another issue that Congress is being asked to reverse.

Meanwhile, the Supreme Court in this term is reviewing arbitration agreements with class action waivers that prevents group legal action against an employer, which the NLRB found to violate the National Labor Relations Act in NLRB v. Murphy Oil USA, Inc.

A five-person board governs the NLRB, with the board members serving staggered five-year terms. Beyond legislative and court action, President Trump will be able to change the makeup of the NLRB as terms expire.