UE to Labor Board: Rights of Millions of Workers at Stake in Proposed Joint-Employer Rule

December 14, 2022

UE’s national officers submitted a comment to the National Labor Relations Board on December 6, encouraging the board to adopt a proposed rule that would make it easier for workers employed by “joint employers” (such as workers at a McDonalds franchise) to secure their rights under our nation’s labor laws.

The issue at stake is whether workers at a subcontracted firm have the right to bargain with — and engage in collective activity to pressure — a contracting company which effectively controls their wages and working conditions. The UE comment cities a 1984 case, Tli, Inc., in which the contracting company sat in on bargaining between a subcontractor and the union representing that subcontractor’s workers, and threatened to cancel its contract with the subcontractor if the subcontractor agreed to wage increases the contractor deemed too high — yet was deemed not to be a joint employer. “The absurdity of this situation is plain,” the officers write. “What recourse do workers have against a person setting a ceiling on their wages who is not their employer?”

As the officers note, the proposed rule is a return to the “broad standard” in effect for over four decades, until a series of cases decided by the employer-friendly labor board of the 1980s (including Tli, Inc.) reversed decades of precedent.

The UE officers explain:

Every worker knows that employers exert both direct and indirect control over their working lives … Similarly, workers are familiar with the ways employers assiduously reserve rights for themselves while contracting to shirk any concomitant duties – resulting in deteriorating conditions for workers and a decline in their bargaining power. The proposed rule captures the principle that labor law should not abet these evasions by employers and for that reason, UE supports it.

[T]he proposed rule enables workers to bargain with whoever is actually calling the shots, rather than being forced to accept a supplying-firm’s claim in bargaining that its hands are tied because the user-firm has retained the right to control the term or condition of work at issue. 

The officers also noted that the proposed rule would ease restrictions on workers’ First Amendment rights:

Even though workers are merely assembling and speaking when they ask for a secondary boycott [i.e., a boycott of a company other than their employer] by consumers or a sympathy strike by their fellow workers—which would be protected by the First Amendment in every other context—such acts are prohibited.

By refusing to recognize the company who is “actually calling the shots” as a joint employer, the current NLRB rule subjects workers who wish to win justice from that company to the prohibition on secondary boycotts and sympathy strikes.

“Because of UE’s long-standing opposition to the Taft-Hartley Act, which enacted [the prohibition on secondary boycotts], and our steadfast support of workers engaged in aggressive struggle against their employers, we support the proposed rule,” the officers write.

The comment concludes:

At stake with the proposed rule are the rights of millions of workers. Under the current rule, employers have evaded their duties under the [National Labor Relations] Act and instead won themselves something like a privilege. So long as they interpose a technically sufficient intermediary, they receive the benefit of the labor performed by employees which economic reality shows they jointly employ, without any of the corresponding obligations contained in the Act.

The proposed rule, then, is a necessary correction. Expanding the scope of the joint employment standard to encompass any employer who shares or codetermines the essential terms and conditions of employment, whether directly, indirectly or merely reserving the right to do so, conforms the Board’s rules to the original purposes of the Act. Without this correction, millions of workers will remain carved-out of the Act’s protections. Because the proposed rule will protect more workers, expand their bargaining power and hold more employers accountable, UE stands in support of it.


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