| Today, the National Labor Relations Board issued its Final Rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act.
Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employee’s essential terms and conditions of employment, which are defined exclusively as (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.
In adopting this new standard, the final rule rescinds the 2020 final rule that was promulgated by the prior Board. The new final rule more faithfully grounds the joint-employer standard in established common-law agency principles. In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold that a putative joint employer must “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment, which has no foundation in common law. The new rule also provides extensive guidance to parties regarding their rights and responsibilities in situations where joint-employer status has been established.
“The Board’s new joint-employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers’ critical terms of employment respect their bargaining obligations under the NLRA,” said Chairman Lauren McFerran. “While the final rule establishes a uniform joint-employer standard, the Board will still conduct a fact-specific analysis on a case-by-case basis to determine whether two or more employers meet the standard.”
The Notice of Proposed Rulemaking was published by the Federal Register on September 6, 2022 and the comment period for initial comments was open until December 7, 2022. The Board received over 13,000 comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date.
Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.
View a fact sheet on the new rule.
U.S. Senators Bill Cassidy, M.D. (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, and Joe Manchin (D-WV) announced they would introduce a Congressional Review Act (CRA) resolution to overturn the National Labor Relations Board’s (NLRB) new joint employer rule, which forces liability on companies for another business’ employees even if they do not directly oversee them. This comes as the NLRB released its final joint employer rule earlier today. | | |
Three Big Strikes And Counting: Can Detroit Catch A Break? by Kimberly Ricci
| | | (Update: Ford and the union reportedly reached a tentative deal on Wed. night. LRI analysis can be found here.)
By now, UAW President Shawn Fain has ensured everyone knows about his Stand-Up Strike. Fain expanded the walkout on multiple fronts this week, first adding another 6,800 autoworkers from a Stellantis Michigan truck plant to the picket lines. He escalated his tactics by adding 5,000 more striking workers from GM's Escalade plant in Texas.
This adds up to around 30% of the total 146,000 UAW autoworkers who are currently on strike, and that doesn't account for the thousands of nonunion Ford, GM, Stellantis, and supply workers who are increasingly being laid off as the work stoppage advances through Week 6.
These autoworker strikes are scattered across the U.S. but focused in Detroit because they don't call it the Motor City for nothing. Additionally, downtown Detroit has now been dubbed by the AFL-CIO as "Strike City" because simultaneous strikes are also ongoing by Detroit casino workers and Blue Cross and Blue Shield of Michigan customer care/claims staff.
The latter two groups are marching on opposite sides of the same street, and guess what union is at least partially responsible for all three strikes? Yes, you nailed it.
Over 1,000 Blue Cross workers who walked out over a month ago are UAW members (yes, this is almost as odd as the union's growing grad student roster) who seek raises and an end to job outsourcing. Intriguingly as well, they recently voiced displeasure with Fain seemingly ignoring them and providing them with zero updates during his Big Three extravaganza.
The UAW also has a hand in the casino strike. Those operations are overseen by the Detroit Casino Council, which feeds into several unions, including the UAW, Unite Here, Teamsters, Operating Engineers, and Michigan Regional Council of Carpenters. In total, 3,700 casino workers – asking for raises in accordance with inflation – have been striking several major Detroit venues since late September.
Those also frustrated casino workers have now lobbied the city council over a lack of movement on their contracts. Depending on who you ask, UAW autoworkers are either "weary" and in financial straits due to their $500 weekly strike pay, or their "morale is still up high."
Fain is holding out for the Big Three to increase their current record offers of around 23% raises, or half of what the UAW demanded. Presumably, he's laser-focused on landing huge wage increases (and restored COLA benefits) for autoworkers because that grabs the most headlines, allowing him to lure in more autoworkers, including at EV battery plants.
Meanwhile, GM estimates that this week's Escalade walkout will increase their weekly strike cost to $400 million. Squirrelly Fain called for that walkout when the company announced positive quarterly financial results. So, he likely believes that he still has the upper hand. Still, that $850 million UAW strike fund should soon dwindle, and we should then learn whether Fain's gamble of biting off more than he can chew – and disappointing members who aren't in flashy, nationwide strikes – will bite him in the militant butt. Then perhaps Detroit can finally take a breather.
Click for Bargaining Updates - Ford Click for Bargaining Updates - General Motors Click for Bargaining Update - Stellantis | | | | AI Coach’s Corner - Analyzing A Union Contract by Michael VanDervort | | | As part of our continuing exploration of how AI tools like ChatGPT can be put to work in the labor relations field, we ran an exercise where we asked an AI tool called Claude to analyze a collective bargaining agreement. We used this tool because it handles longer documents better than ChatGPT at this point.
For the exercise, we downloaded a CBA from the library at Cornell University, uploaded the pdf of the document into Claude, and then asked it to perform several different prompts. Here is what that looked like:
Prompt 1: Summarize the key elements of this CBA Here are the key points from the agreement: The agreement covers hourly employees at the facility, excluding certain positions like office staff, professionals, and supervisors. It establishes a union shop where employees must join the union after 30 days. The agreement sets forth wage rates, job classifications, seniority rules, grievance procedures, holidays, vacations, insurance benefits, and other standard terms. The initial term is April 1, 2023, to March 31, 2026. Wage increases include 5% in April 2023, 2% in April 2024, and 2% in April 2025. Employees get paid time off for holidays like Christmas, New Years, Memorial Day, etc. They also get vacation time, funeral leave, and jury duty leave. There are provisions for health insurance, retirement benefits, safety equipment reimbursement, and other benefits. Work rules cover issues like hours of work, overtime, temporary transfers, attendance policies, etc. There are commitments for no strikes or lockouts during the contract term. Disputes go through a grievance and arbitration process. It establishes the wages, benefits, and working conditions for union employees at the company's facility over three years.
Prompt 2: Summarize the management rights clause Here is a summary of the management rights clause in the agreement: The company retains all management rights and functions not expressly limited by the agreement. The company has discretion over business operations, workforce direction, hiring and staffing decisions, discipline, work methods and technology, suppliers and customers, facilities and equipment, etc. The company can establish reasonable work rules with advance notice to the union. After discussing with the union, the company can introduce new jobs or classifications, though pay rates can't substantially differ from existing ones. The company can cease operations or transfer work out of the bargaining unit without violating the agreement. The union agrees the company has the right to take these actions at any time. The clause reserves broad managerial discretion for the company over the business, subject only to the specific limitations in the agreement. The union gave up bargaining over these core management rights.
Prompt 3: What are the current wage rates and increases by year? Here are the current wage rates and wage increases outlined in the collective bargaining agreement: Wage Rates: The agreement establishes four job categories with corresponding minimum and maximum hourly wage rates: Category 1: $18.00 - $23.00 Category 2: $19.00 - $26.00 Category 3: $20.00 - $27.50 Category 4: $28.00 - $35.00
Wage Increases: The agreement provides the following wage increases: April 2023: 5% wage increase for all union employees April 2024: 2% merit wage increase for all union employees April 2025: 2% merit wage increase for all union employees
The actual wage rates depend on the employee's job category and placement within the wage range for that category. Prompt 4: Analyze the contract and suggest any needed improvements for the company
Here are some potential areas for improvement in the collective bargaining agreement from the perspective of the company: Attendance policy (Article 18) - The attendance point system may be too permissive. Consider tightening the policy to reduce unscheduled absences. Wage increases (Article 13) - The 5% increase in year 1, followed by 2% merit raises, seems high compared to current economic conditions. Propose lower raises. Vacation accrual (Article 19) - The vacation accrual scale is quite generous, especially for long-service employees. Look to cap vacation accruals. Holidays (Article 20) - Nine named holidays plus two floating holidays are above average. Try to eliminate the floating holidays. Contract duration (Article 25) - A 3-year term limits flexibility. Propose a shorter 1 or 2-year term. Temporary transfers (Article 15) - The 10-day cap on temporary transfers is restrictive. Propose loosening or eliminating the cap. Seniority (Article 10) - Broad seniority rights limit management discretion over promotions and transfers. Try to limit seniority rights. Job postings (Article 14) - Mandatory job posting removes management flexibility. Propose eliminating required postings. Management rights (Article 3) - Strengthen the management rights clause by limiting past practices claims.
Overall, the company should push for more flexibility over business operations through tighter attendance rules, reduced time off, lower wage growth, and limited seniority rights. The goal should be an agreement that preserves maximum management authority. | | | |
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