NLRB – Requirements for Working with Union Groups
As leaders in the organization, we need your help in communicating the training to foreman and superintendents. As promised, attached is a short-form subcontract and a long-form subcontract. These forms are to be used when we hire a union subcontractor. Also attached are the slides from the presentation. Part of our prequalification process for subcontractors now involves an inquiry about whether they are union. If you are unsure whether a subcontractor is union, please ask the Encore accounting group to provide you with the information that we have on file.
Below is a quick recap of the training:
NLRB Decision: Browning-Ferris Industries
- A recent NLRB decision, “Browning-Ferris Industries,” reversed 40 years of legal precedent when it changed the factors that will be considered when determining whether two separate companies are “joint employers.”
- The NLRB dramatically expands the “joint employer” standard.
- If Encore is found to be a “joint employer” with a union subcontractor, the union could force Encore to call a union vote, which would be disruptive, expensive and could potentially lead to collective bargaining.
- The new standard eliminates the requirement that an employer actually exercise direct and immediate control over the union employees. Under the new standard, if there is indirect control over the union employees (or even the mere right to control), a company can be found to be a “joint employer” with a union.
- If a company has the contractual right to control the “essential terms and conditions of the union employees’ employment,” the company will be held to be a “joint employer.”
- The essential terms and conditions of employment include (but are not limited to) setting wages, hiring/firing, dictating the number of workers needed, disciplinary action, controlling scheduling/overtime, and determining the means and methods of performance.
- The new standard is:
- Much broader;
- Very fact specific;
- Not limited to an exclusive list of factors; and
- “Inclusive” as to what constitutes essential terms and conditions of employment.
What the NLRB Decision Means to Encore PMs and DBUs
- The NLRB decision changes how we need to interact with union subcontractors.
- We can still use union subcontractors, however, it will be more complicated to do so and it will change the way that we supervise and interact with union subcontractors on our projects.
- We have a union subcontract form (both long-form and short-form) that must be used anytime that we use a union subcontractor.
As the PM/DBU, you have the right to control your project, however, your communications need to be with the supervisors for a union subcontractor and you must avoid exercising control over the union employees. By way of example, instead of telling a union employee to finish digging a trench by the end of the day, communicate to the union supervisor that the subcontract requires that the trench be completed by the end of the day and remind the supervisor of the contractual obligation. Let the union supervisor decide how the task will be performed and how to address his/her own employees.