National Labor Relations Board
Several recent National Labor Relations Board (NLRB) decisions have overturned decades of labor law precedent. Specifically, decisions that created micro-unions, ambush elections, and the joint employer standard, threaten to dramatically upend the relationship between retailers and their employees. RILA will look to the Trump Administration to reconstitute a full slate of NLRB board members, so that they may revisit these issues in 2017 and restore commonsense workforce regulations.
The NLRB's August 2015 decision in Browning-Ferris mandated that a business will be considered a "joint employer" if the business has "indirect" or "potential" control over conditions and terms of employment of the contractor's employees. This new standard will potentially subject retailers to unfair labor practices allegations or collective bargaining efforts related to employees of third-party contractors.
The Board's decision in the Specialty Healthcare and Rehabilitation Center of Mobile case, gives unions free reign to create micro bargaining units within workplaces which, in turn, creates harmful conflict and division among employees. Historically, a retail bargaining unit was made up of all non-management employees at a location. The micro- union decision redefined the standard, allowing smaller units made up of as few as two employees with similar responsibilities, e.g. cashiers or shoe departments. The gerrymandering of a store would deny employees flexibility that they value and the cross- training employees need for advancement. Further, micro unions could have a harmful impact on the customer experience as employees within one unit would likely be unable to serve a customer seeking help outside of that department.
RILA agrees employees should have the ability to make an informed decision about forming a union. However, a 2014 NLRB rule denies that opportunity by shortening the period between a union filing and a union election to as little as 10 days. This severely limits the ability of employers to communicate with employees about the impact of unionization on the business, and denies employees access to balanced information before casting their vote. Further, the ambush elections rule forces employers to provide union organizers with employees’ personal contact information, that could subject them to harassment at home.
Flexible scheduling is one of the principle reasons millions of Americans choose to work in retail. Students, parents and those seeking part-time opportunity enjoy the flexibility that retail provides. However, a surge of proposals on the state and local level would undermine this flexibility and threaten access to part-time work. These "restrictive scheduling" requirements fail to consider the preferences of the employees themselves, ignore the many retail employees who are looking for part-time work and the realities of managing retail businesses where external factors force retailers to adapt schedules to serve customers well.
In 2016, San Francisco, Seattle and Emeryville, CA have adopted new requirements. Several other jurisdictions, including the state of California and Washington, D.C. have considered measures as well. RILA will continue to work with member companies and stakeholders to educate lawmakers about the detrimental impact onerous scheduling mandates will have on retailers and their employees.