Rick Allen Lambasts NLRB: ‘Employers Must Have Actual Direct And Immediate Control Over Employees’

4 months ago

On Wednesday, Rep. Rick Allen (R-GA) questioned Biden officials on union protection during a House Education and the Workforce Committee hearing.

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00:00speech in that context, it has to take into account the Section 7 context.

00:05Thank you.

00:06Thank you.

00:07I yield back.

00:08Thank you.

00:09I now recognize Mr. Allen for five minutes.

00:12Thank you, Mr. Chairman.

00:14Mr. Ring, in 2023, the National Labor Relations Board issued the Joint Employer Final Rule,

00:21which upends the traditional direct and immediate control standard and creates an expansive,

00:26vague, and costly standard.

00:29In March 2024, a federal district court struck down the rule because it exceeded the NLRB's

00:35authority.

00:36Also in 2024, the House and Senate passed a Congressional Review Act resolution to nullify

00:42the rule.

00:44Despite a federal court striking down the rule and Congress expressing its disapproval,

00:49the NLRB decided to appeal the court's decision, striking down the Joint Employer Rule.

00:56As former NLRB chairman, would a bipartisan and bicameral rejection of a rule, along

01:01with a court decision knocking the rule down, have been taken into consideration when deciding

01:06whether to pursue an appeal?

01:10Of course it would.

01:11And I'll just add that there was a very similar joint employer standard that was adopted by

01:18the board during the Obama years that was struck down by the D.C. Circuit at least twice.

01:23So this standard that they've been pushing is DOA on a number of courts.

01:28Why they continue to push it is puzzling.

01:32I always viewed my role at the board as trying to color within the lines.

01:38We saw our role as not having a particular agenda, but rather to enforce the statute

01:46and interpret the statute the way Congress had written it and as interpreted by the courts.

01:52This board does not seem to follow that same approach.

01:59And I'd like to emphasize here that I have a bill, the Employee Rights Act, which clarifies

02:03that two or more employers must have actual direct and immediate control over employees

02:07to be considered joint employers and will protect the franchise model by codifying the

02:13long standard definition to prevent franchise owners from becoming corporate middle managers.

02:20Mr. Seaton, during Chairman Ferrin's tenure, the board has revised election rules for

02:26union representation and decertification elections to diminish employees' rights to refrain from

02:33human activity.

02:35Can you discuss some of these basic changes made by this board?

02:39Yes.

02:40Thank you, Representative.

02:41Yes, the changes are many throughout the procedural rule, and they, as I said in the earlier comments

02:48I made, they truncate employees' rights in many ways.

02:51Now, employees don't have a direct role in elections, but they are important for their

02:58rights.

02:59And those rules have been modified in a way that makes it very difficult to object to

03:03the nature of the unit proposed, essentially nullifies the opportunity to challenge the

03:09inclusion or exclusion of certain employees within the bargaining unit.

03:13And we have found that in many cases that I've looked at, you simply don't have an opportunity

03:19to make your point in these proceedings in a way that will affect the actual outcome.

03:24So instead, an election takes place, and a union may in some cases be recognized as the

03:31bargaining agent, where employees really have not had a true opportunity to make their voices

03:36heard in the matter, nor has the employer for that matter.

03:39Well, let me follow up with this.

03:41Independent contractors are not employees under the National Labor Relations Act.

03:46In 2023, the NLRB issued a decision in the Atlanta Opera case that made it easier for

03:53the board to deem independent contractors to be employees.

03:56Your written testimony notes that this decision is another assault on worker choice.

04:01Can you explain how the board's efforts to undermine an individual's right to be an independent

04:04contractor impacts that worker's choice?

04:07Yes.

04:09Thank you again, Representative.

04:11Employees and service providers, I'll call them generically, have a choice as to whether

04:15to be employees or independent contractors.

04:17That's a very important right under our Constitution, a livelihood right.

04:21And the board has truncated and restricted the arena of choice for employees by essentially

04:28making it very difficult to choose to be an independent contractor.

04:31In these decisions and many others, and in efforts to promote the joint employer rule

04:36that you mentioned also, it has the effect of cutting off that opportunity for employees.

04:41I think it's a fundamental right to choose those things, and I think that this board

04:45unfortunately has restricted that right.

04:48Right.

04:49Thank you.

04:50And again, the Employer Rights Act would create consistency and clarity across federal statutes

04:54with respect to employee and independent contractor status.

04:58The ERA provides essential protections for workers' rights, choices, and freedoms for

05:04the record.

05:06I have additional questions which I'll submit for the record.

05:09And with that, my time is out.

05:12And I yield back.

05:13Thank you.

05:14The Chair now recognizes Mrs. Hayes for five minutes.

05:19Thank you.

05:20And thank you to our witnesses for your testimony today.

05:23Last year, 16.9 million employees were unemployed.

Rick Allen Lambasts NLRB: ‘Employers Must Have Actual Direct And Immediate Control Over Employees’

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