RedBlueAmerica: What Makes An Employer An Employer?

By Joel Mathis and Ben Boychuk
Tribune News Service.

What makes an employer an employer?

That’s the question a new ruling by the National Labor Relations Board attempts to settle. The NLRB last week decided that contract workers and franchise employees, think of your local McDonald’s, may more easily unionize thanks to a new, broader definition of the term “joint employer.”

A majority of five-member board said, in effect, that just because a corporate franchise is independently owned and operated doesn’t mean a corporation may exclude itself from the bargaining table. The ruling is being called one of the biggest developments in labor law in 35 years.

Is the NLRB ruling correct or an impingement on business freedom? Joel Mathis and Ben Boychuk debate.

What the National Labor Relations Board did last week was no obscure exercise in bureaucratic decision making. The board’s 3-2 decision will likely affect how much you pay for a Big Mac and a car ride, and quite possibly, where you work and how much you earn.

The ruling concerned Browning-Ferris Industries, a waste management company, and its relationship with Leadpoint Business Services, a staffing company Browning-Ferris used to hire and manage temporary workers. One company needed workers. The other provided them. No fuss, no muss.

But the NLRB is all about fuss and an unlimited supply of muss. And so the board, which consists of three Democrats and two Republicans, is building a new regulatory scheme.

Last year, in another 3-2 decision, the board decided that McDonald’s has “sufficient control over its franchisees’ operations” to make it a “joint employer” for collective bargaining purposes. Under the old standard, the franchiser needed to have a direct say in hiring, firing and wages. Not anymore.

So what is this really all about?

It’s difficult for a union to organize one store at a time. One franchise owner may be amenable. Others may balk. But if the government forces the big bad corporation to the table, the dynamic changes. Suddenly, the union is poised to unionize tens of thousands of stores in one fell swoop. And what a coup that would be!

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