During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight.
Opening the hearing, Chairman Kline stated that the Board “issued three significant decisions at the end of August that overturn long-standing Board precedent.” According to Kline, through these decisions the Board: “restricted workers’ right to a secret ballot election, undermined employers’ ability to maintain unity in the workplace, and created new barriers for those who wish to challenge union representation.”
Of the three cases, the one that garnered the most attention was Specialty Healthcare, in which the Board overruled an earlier decision (Park Manor) that set forth the appropriate standard for determining bargaining units. Under the revised standard, so long as a union's petitioned-for unit consists of a clearly identifiable group of employees, the Board will presume the unit is appropriate. If an employer believes that additional employees belong in that unit, it must prove that these employees share an “overwhelming” community of interest with those in the petitioned-for unit. According to Kline, as a result of this decision, “it will be virtually impossible for employers to challenge the group of employees handpicked by the union.”
This prediction was echoed by some witnesses, who claimed that this decision will result in highly fragmented, “micro” bargaining units that are easier to unionize and harder to contest.
Moreover, one panelist noted that if the Board is left with only two acting members as of January 2012, it will be rendered unable to hear challenges to these bargaining units.
Hearing members also criticized the Board’s “recognition bar” decision in Lamons Gasket Company. In this case, which reversed the earlier Dana Corp. decision, the Board held that a “reasonable period” of time must pass before an employer’s voluntary recognition of a union can be challenged. Previously, as established under Dana Corp., employees were given 45 days to request a secret ballot election after the employer voluntarily recognized the union as the exclusive bargaining representative. Now, employees must wait at least six months after the first bargaining session before doing so. One employee witness claimed that doing so deprived her and her colleagues of their right to a secret ballot election to decline union representation.
With respect to the Board’s recent rulemaking efforts, a former NLRB regional director testifying at the hearing found fault with the agency’s proposed changes to its representation election procedures. The witness stated that among other problems with these proposed changes, the expedited time frame for conducting an election “eviscerates” an employee’s NLRA rights, as it would “sharply reduce the time for employees to weigh whether or not to support a union.” In addition, the rule “would interfere with employers’ right to discuss collective bargaining with employees and employees’ right to discuss collective bargaining among themselves.”
Notice Posting Rule
Panelists also took aim at the NLRB’s final notice posting rule, claiming the Board lacks the statutory authority for mandating that employers post notices informing employees of their rights under the NLRA. Other witnesses criticized the required poster for its vagueness. Yet another panelist found fault with the fact that if an employer fails to post the notice, it faces an independent ULP charge and may also be found to harbor anti-union “animus” in a separate ULP proceeding, “shifting the presumption of guilt” on to the employer. Moreover, failure to post the notice could toll the six-month statute of limitation period contained in Section 10 of the NLRA, which prevents a complaint from being “based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.”
Legislation has already been introduce that would rescind this posting rule. Lawsuits to enjoin its enforcement are also pending.
Several bills have been introduced in recent weeks that would curtail the NLRB’s authority. Committee member Trey Gowdy (R-SC) – who called the NLRB a “shill” for organized labor during the hearing – last week introduced legislation that would abolish the NLRB entirely. Although this measure has very little chance of being enacted, Gowdy – as well as other Committee members and hearing witnesses – criticized the Board’s ability to relocate a business’s employees and/or operations as a ULP remedy. The House of Representatives recently passed a bill that would prevent the Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. This bill, however, is not likely to advance in the Senate, as evidenced by a September 21 Senate Appropriations Committee vote rejecting an amendment to a FY 2012 appropriations bill that would have incorporated such language.
Nonetheless, bills challenging or limiting the Board’s authority will likely continue to be introduced. The most recent bill proposing to curb the Board’s authority is the Protecting American Jobs Act (H.R. 2978), a measure that would limit the scope of the Board’s rulemaking ability, as well as its authority to issue complaints and process unfair labor practice charges. Specifically, the bill would limit the Board’s rulemaking authority to those issues concerning the agency’s internal functions and prohibit the Board from promulgating rules that affect the substantive rights of any person, employer, employee, or labor organization.
In addition, the legislation would strike several provisions from the National Labor Relations Act granting the Board certain powers to investigate and adjudicate unfair labor practice claims. For example, the bill would rescind the section empowering the Board to “prevent any person from engaging in any unfair labor practice . . . affecting commerce.” The bill also would strike the provision granting the Board the power “to issue and cause to be served upon such person” an unfair labor practice complaint, as well as NLRA sections authorizing the Board to take testimony and make findings; set aside findings or orders prior to filing record in court; petition the court for enforcement of an order; issue injunctions, among other functions.
This bill, which was introduced by Rep. Austin Scott (R-GA) and cosponsored by 26 others, has been referred to the House committee that held Thursday’s hearing on the NLRB.
A full list of the panelists and links to their testimony, as well as a link to an archived webcast of the hearing, can be found here.