Biden’s big union power grab
Washington Examiner
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If you were hoping for more pro-Hamas propaganda from your local barista, we have good news. President Joe Biden‘s National Labor Relations Board has issued a new regulation to enable unions to force membership on all stores affiliated with one brand, such as Starbucks, instead of winning elections franchise location by franchise location.
The “final rule” was issued last week and is slated to take effect the day after Christmas. But a long legal fight lies ahead, with a resolution expected by the Supreme Court years from now. In the meantime, expect more far-left statements from the union trying to organize Starbucks workers, which posted “Solidarity with Palestine!” after the Hamas terrorist attacks on Oct. 7.
BIDEN SUPPLEMENTAL WOULD HIRE MOST EVER BORDER PATROL AND IMMIGRATION JUDGES
It is not the first time the NLRB has attempted this power grab. In 2015, the Obama administration’s NLRB issued a similar regulation, which was later overturned by the Trump administration’s NLRB. Now that Democrats are back in power, the push against franchise businesses is back.
Known as the Standard for Determining Joint-Employer Status, the new NLRB regulation significantly expands who can be considered an employee. Under current law, an employee must show that another entity exercises “substantial, direct, and immediate control” over the terms and conditions of employment to be considered that employee’s employer.
Under the new rule, the “substantial, direct, and immediate” test is gone. Now, all an employee has to show is that another entity “co-determines” one of seven conditions of employment, including wages, hours, duties performed, supervision, methods of performance, hiring and firing, and safety.
So, under the old rules, McDonald’s would not be considered the joint employer of a McDonald’s franchise employee just because the McDonald’s corporation set standards on how french fries should be cooked. But under the new rules, if McDonald’s undertakes any quality control at franchises, every employee at every franchise would also be considered McDonald’s staff even though McDonald’s did not hire them, set their wages, or tell them when to work.
This change makes it easier to unionize every McDonald’s store at once and would also make McDonald’s liable for every unfair labor practice at franchises. So if a franchise didn’t pay staff on time or created unsafe work conditions, litigants could go after McDonald’s deep pockets for actions it never committed or authorized.
When Congress passed the National Labor Relations Act in 1935, it did not intend to make the franchise business model illegal. Franchising wasn’t a widespread business model until after World War II. Even then, despite many chances, Congress has never passed legislation to destroy the franchise business model in the way the new regulation does.
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That is why this regulation will probably be struck down by the Supreme Court’s “major question” doctrine, which holds that a “transformative expansion” of executive power must be explicitly granted by statute, not created through legal ambiguity.
It will take years to work through federal courts, but this regulation will be struck down. Unless, of course, Congress acts to make it law the constitutional way.