Today’s News & Commentary — September 17, 2019


Published September 17th, 2019 - 09.17.194


ProPublica reported yesterday about a potential conflict of interest facing the National Labor Relations Board (NLRB) as they seek to revise the so-called “joint-employer rule” through agency rulemaking procedures. Last week, two Democrats on the House Committee on Education and Labor sent a letter to Board Chairman John Ring expressing concerns over a contract the Board has made with a company called Ardelle Associates. Under the contract, Ardelle will provide the NLRB with temporary workers to help review public comments made on the proposed changes to the joint-employer rule. According to the Democratic representatives, the Board has failed to provide lawmakers with complete information about the terms of the contract. The representatives are particularly concerned that the Board has contracted out an “inherently governmental function” to these temporary workers, who will be involved in categorizing and potentially summarizing public comments, having a substantive hand in a rulemaking process that will affect their company’s interests.

The current form of the joint-employer rule was laid out by the Obama Board in the 2015 Browning-Ferris Industries decision. Under that standard, the Board may find that two or more statutory employers are joint employers of the same employees by looking to both the employers’ “reserved authority” to control the employees’ terms and conditions of employment and the indirect control the employers may exercise. The Trump Board’s proposed standard would require finding that a putative employer “possess and actually exercise substantial direct and immediate control” over the terms and conditions of employment. The Board has previously tried to change the rule through adjudication, as is common practice for the agency. That effort stumbled due to separate conflict-of-interest concerns, and the Board eventually voted to undo the decision. You can read some of OnLabor’s previous commentary on the Trump administration’s attempts to undo the Obama-era joint rule here, here, and here. Andrew Strom also has a piece up today on the Trump NLRB’s other recent attempts to rewrite labor law.

As Tabatha reported yesterday, the United Auto Workers union has gone on strike against General Motors. The strike included nearly 50,000 workers, who walked out of facilities in nine states around the country. President Trump tweeted yesterday that the union and General Motors needed to “get together and make a deal.” Many picketing strikers reacted by hoping the president would stay out of their negotiations. The strike could cost the company upwards of $100 million per day and could last longer than expected, as one of the union’s top negotiators reportedly said that many unresolved sticking points remain.

Meanwhile, other potentially major strikes and demonstrations remain on the horizon. Unions representing over 80,000 Kaiser Permanente workers announced yesterday that their members plan on initiating a weeklong strike starting October 14 of this year. Various unions in the coalition, especially those representing workers in California, had already announced plans to strike, though the full scope of the strike remained unclear. Additionally, climate strikes in nations around the world and cities throughout the United States are expected to take place this Friday. Notably, the strikes may include over 1,000 Amazon employees, who are planning to join the walkout to protest the company’s inaction on climate change. Workers at other tech companies, including Google and Microsoft, have also expressed an intention to participate in the demonstrations.

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