Bush Board Reverses Clinton Board, This Time on Joint Employer Units

Posted 9:49 PM by Michael Fox

One area where the substantive law can clearly change based on the winner of the presidential election is under the National Labor Relations Act. Not only can, but frequently does. The latest example is last week's decision in H.S. Care LLC (Case 29-RC 10101 11/19/04). In a 3 - 2 decision, the Board overruled its 2000 decision in M.B. Sturgis, 331 NLRB 1298 (2000). The Board succinctly summarizes what it did:

In Sturgis, the Board found that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by the user employer and a supplier employer are per-missible under the Act.

For the reasons discussed below, we hold, contrary to the Board’s decision in Sturgis, that such units constitute multiemployer units, which, in accordance with the stat-ute, may be appropriate only with the consent of the par-ties. Therefore, we overrule the Board’s decision in Sturgis and return to the Board’s longstanding prior precedent.

There have been at least two other well publicized reversals in the year since Bush appointees were finally in the majority. One involves whether graduate assistants are employees covered by the NLRA and entitled to be represented by unions. See Labor board reverses on graduate assistants in the Villager. The other was to return to the rule that existed prior to the Clinton Board, that employees in a non-union environment are not entitled to representation in disciplinary meetings. See, NLRB Reverses Itself Again - Now Says That Weingarten Rights Are Not Available to Non-Union Employees .

Although many would argue that such swings are unhealthy for labor relations because they create uncertainty, it is unlikely any political party that thinks, or even just hopes, it might soon have the power to change things in line with its way of thinking will be willing to agree to any sort of change. And of course to those who bemoan these recent changes, supporters of the decisions will point out in all three cases, the Board could accurately say it was returning to a prior position of the Board that had itself been reversed following a political change in power.

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