House Overrides NLRB's Ambush-Election, Micro-Union Positions

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John Kline photoFor organized labor, the National Labor Relations Board (NLRB) during the Obama years has become a de facto legislative body, issuing rules and rulings to give unions extra advantages in organizing and bargaining that Congress won't enact. Not surprisingly, union officials are dismayed over a vote in Congress last week to block a proposed NLRB regulation to shorten the time frame for holding representation elections and a board ruling expanding the leeway for forming workplace "micro-unions." Last Wednesday, on November 30, the House of Representatives by 235-188 passed the Workforce Democracy and Fairness Act (H.R. 3094), which, among other things, would counteract a "quickie" or "ambush" election rule unveiled by the NLRB in mid-year. Meanwhile, the Senate has come out with a similar bill focusing on the micro-union issue.  

Union Corruption Update reported at length on the so-called "quickie election" issue almost a half-year ago. The National Labor Relations Board on June 21 had announced a proposal, which it published the next day in the Federal Register, to cut at least in half the time elapse between a union filing a petition for representation and workers voting on whether to be represented. The proposal, the board said, would modernize the election process. At present, the usual allowable time elapse is 42 days and the elapse in practice is about 38 days. Because a nonunion employer typically doesn't become aware of a union organizing campaign and its gathering of requisite signatures until the filing date, he will use the six-week window of opportunity to explain the company position to employees. Unions, understandably, want to minimize this window of opportunity. With the NLRB, for the time being down to three members with a 2-to-1 Democratic majority, the unions have an ally.

The new NLRB rule would reduce the time elapse to as little as 10 days and no more than 20 days. It also would force an employer to "set pre-election hearings to begin 7 days after a petition is filed" and would "reduce from 7 to 2 days the time for an employer to provide an electronic list of eligible voters." In effect, the regulation would make it as difficult as possible for employers to mount a case against worksite unionization. This "ambush election" regulation would give unions a tool to expand their numbers in lieu of passage of the misnamed Employee Free Choice Act (EFCA), dormant since a successful Senate GOP filibuster against it in 2007. That legislation would have forced a private-sector employer to recognize a union as the sole collective bargaining agent if organizers manage to persuade, often in aggressive ways, a simple majority of workers to sign cards indicating a desire to join. On a practical level, the provision would have rendered elections obsolete.

House Republicans, believing the rule change is a major step in the wrong direction, have rallied behind the Workforce Democracy and Fairness Act. Introduced this October by Rep. John Kline, R-Minn. (see photo), chairman of the House Committee on Education and the Workforce, the bill would give workers ample opportunity to hear both sides of a unionization debate before casting ballots. The measure: 1) allows employers at least 14 days to prepare a case for presentation before an NLRB election officer and an opportunity to raise additional concerns throughout the hearing; 2) stipulates that no union election can be held with less than 35 days' advance notice; and 3) bars the NLRB from issuing a rule to require companies to give worker home addresses and personal e-mail addresses to union organizers. In other words, the bill would prevent unions from realizing the main provisions of EFCA via the National Labor Relations Board, which Rep. Kline calls "a runaway board."

In addition, the measure overrides the NLRB's decision in late August in Specialty Healthcare that expanded the range of opportunities for employees to form "micro-unions" at workplaces where a majority of workers reject union representation. These mini-unions would raise employer's compliance costs with federal collective bargaining requirements, indeed potentially drastically, were the units to be divided finely enough. In Specialty Healthcare [357 NLRB No. 83 (2011)], issued just prior to the expiration of NLRB Chairwoman Wilma Liebman's tenure, the Democrat-dominated board ruled 3-to-1 to adopt a broader standard for defining a collective bargaining unit. As long as a petition for recognition by a union, however small in membership, consists of a clearly identifiable group of employees, the NLRB ruled, it should be recognized. An employer objecting to the formation of a micro-union, wrote the majority, must prove that employees in a larger unit share an "overwhelming" community of interest with the smaller one(s). The ruling overturned the more restrictive standard for defining a bargaining unit articulated in Park Manor Care Center [305 NLRB 872 (1991)].

The House Workforce Committee approved Rep. Kline's measure late in October by a margin of 23-16. Passage by the full House by 235-188 last Wednesday broke down almost fully along party lines, with Republicans voting in favor by 229-8 and Democrats voting in opposition by 180-6. In the Senate, where Democrats outnumber Republicans by 52-46 (not including two left-leaning Independents), however, a similar outcome is a good deal less likely. But it's not for want of trying by supporters, at least in the area of bargaining unit definition. On November 10, Sen. Johnny Isakson, R-Ga., unveiled the Representation Fairness Restoration Act (S.1843), which would revoke Specialty Healthcare. The bill seeks to avert a proliferation of tiny and virtually identical unions at a workplace whose seeming ulterior motive is to wear down an employer into making concessions. With the exception of acute health care facilities, the measure specifies that a bargaining unit must share a "sufficient" community of interest with other units, as evidenced by such factors as similarity of wages and other compensation, similarity of skills and training, and extent of common central management. The Isakson bill has no fast-track election provision and has yet to hold a hearing.

Opponents of the measures, especially the just-passed House bill, have been infuriated from the start by what they see as an anti-worker bow to corporate interests. AFL-CIO President Richard Trumka in October denounced the House bill as the Republicans' "latest attempt to strip workers of their rights and stop fairness in the workplace." In a prepared statement, Trumka declared: "Rep. Kline and anyone who supports his anti-worker bill should take a moment to listen to the people [protesting] on Wall Street - not the CEOs or hedge fund managers, but rather the people standing together to protest. What they'll hear is a call for action to create good jobs and end the inequalities by corporate greed and economic injustice." Democratic lawmakers have said much the same thing. "This bill seeks to frustrate workers' rights to an election, through attacking the National Labor Relations Board," fumed Rep. Dennis Kucinich, D-Ohio. And Rep. Louise Slaughter, D-N.Y., remarked: "We're using precious floor time considering a bill that attacks the rights of all American workers and has no chance of becoming law. That, unfortunately, is something we do week after week here."

Defenders of the legislation view it as a necessary corrective to a National Labor Relations Board that has run amok in its partisanship of organized labor. David French, senior vice president for government relations at the National Retail Federation, stated the day before the full House vote:

Over the past three years the NLRB has taken its administrative and regulatory cues from big labor and the failed Employee Free Choice Act. From advancing ambush elections to its decision on micro-unions, the NLRB has reversed longstanding criteria at the expense of employers - America's jobs creators. Congress must act now to thwart the NLRB's radical regulatory maneuvers and work to restore fairness and balance to union organizing for the good of workers and the economy.

Congressman Kline, the chief sponsor of the House bill, sees the NLRB's true agenda as limiting worker freedom under the guise of expanding it. "The board's scheme isn't about modernizing the election process," he remarked in a floor speech prior to the vote. "This is a draconian effort to stifle employer speech and ambush workers with a union election. Less debate, less information and less opposition - that's big labor's approach to workers' free choice." And Rep. Richard Hanna, R-N.Y., a moderate, explained his support for the GOP majority this way: "I strongly support unions, but it is clear that these proposed rules go too far and stray from longstanding precedent - to the detriment of both workers and employers."

The National Labor Relations Board, meanwhile, reportedly is pressing forward with finalizing its rule allowing quick elections. Given its truncated composition, it has every reason to do so. Normally operating with five members, the board is now down to three. With the pending departure at the end of the calendar year of radical pro-union Democrat Craig Becker, a recess appointment, it will be down to two: Chairman Mark Gaston Pearce, a Democrat, and Brian Hayes, a Republican. The last thing Becker wants, given that his full reappointment is unlikely, is leaving with a lot of unfinished work. A two-person split-party NLRB isn't likely to get much of anything done - and probably wouldn't be allowed to do so anyway in light of the Supreme Court's New Process Steel ruling in June 2010.

Brian Hayes is the odd man out. And he's feeling like one as well. Hayes has complained that despite a whopping 66,000 public comments on the House bill, fellow Democratic board members have withheld information from him regarding responses to the comments and changes to the original draft. That might not seem like fair play, but it makes political sense. Barack Obama is our most aggressively pro-union president in decades. Unable to get Congress to enact his labor initiatives, he has made appointments to the NLRB and the Labor Department who are committed to producing the equivalent of such legislative outcomes as much as possible. The question now becomes: Is the Senate willing to follow the example of the House? If not, then the NLRB almost certainly will finalize and approve its fast-track election rule by the end of the month. Its Specialty Healthcare ruling will stand. And union leaders will claim a huge victory.

Related:

NLRB Rule Would Burden Employers with Fast-Track Union Elections

Will NLRB Create Stealth Pro-Union Legislation?

Supreme Court Rules against Two-Member NLRB; Decision May Reopen

NLRB Issues Proposal to Allow Quickie Union Elections