Employers should note that the courts and the NLRB now look at a number of considerations in order to decide whether a company can simply, on its own, decide to subcontract work. Of all of these considerations, the courts and the NLRB are likely to be most concerned about an adverse impact on bargaining-unit members. As a result, subcontracting that results in layoffs is likely to cause trouble. This is, of course, a serious dilemma for many companies, since a reduction in the workforce will often be the reason that the company wants to subcontract. When an employer's subcontracting appears to be the product of anti-union animus, the company will usually be found guilty of an unfair labor practice.
Timing can be everything.
In disputes of this nature, the employer must be able to prove that it would have taken the same action regardless of any union-organizing activity. Subscribe to Labor Relations Bulletin to keep up with all the trends that affect the unionized workplace.