The House of Representatives has set the stage for future debate and vote on the Workforce Democracy and Fairness Act (H.R. 3094), a bill that would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and serve as a preemptive strike against the National Labor Relations Board’s proposed changes to representation election procedures. On Friday, the House voted 239 - 167 in favor of a rule (pdf) that will, among other limitations, provide for one hour of general debate on the measure and consideration of four proffered amendments to the legislation.
The changes made by the Workforce Democracy and Fairness Act would reverse Specialty Healthcare, the case in which the Board held that a union’s petitioned-for bargaining unit shall be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. The Board further established that if an employer believes that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit.
Critics of this decision have argued that the change in standards for unit determination will result in much smaller “micro” bargaining units that are easier to organize and more difficult to handle administratively. According to the House Report on this bill, Specialty Healthcare “limits employee free choice and employer free speech, and will fracture the workforce.”
The proposed representation election procedure changes – which have generated thousands of critical written comments and instigated several congressional and NLRB hearings – would, among other significant changes, require that pre-election hearings be held within seven calendar days after a petition is filed; provide employees with as few as 10 days to make a decision regarding whether they want to join a union; dramatically reduce pre-election evidentiary hearings, including those concerning voter eligibility/appropriate bargaining units; mandate that employers complete their statement of position before evidence is heard at a pre-election hearing; eliminate any automatic right to post-election Board review of contested issues; and require employers to provide the union a preliminary voter list before the pre-election hearing, and a final voter list within two days after the election is scheduled. On November 18, the Board announced that on November 30, 2011, it intends to vote on “portions” of this proposed election rule.
To address these issues, the instant bill would, as summarized in the House Report:
codify the traditional standard for determining an appropriate bargaining unit and the traditional standard used to challenge a petitioned-for bargaining unit, require the Board to rule on challenges to composition of the bargaining unit prior to the election, ensure employers have at least 14 days to prepare for a pre-election hearing, allow parties to raise relevant and material pre-election issues as the pre-election hearing record is developed, ensure parties may request pre-election Board review of regional director's decisions, provide employees with at least 35 days to consider whether they wish to be represented by a union, and permit employees to choose what personal information is provided to the union.
With respect to the proper bargaining unit standard, the bill would require that the Board determine the appropriate bargaining unit prior to an election. Employees in the unit would be required to share a “community of interest,” as evidenced by the following factors: (1) similarity of wages, benefits, and working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer's organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry.
The act further emphasizes that to avoid the proliferation of micro units, “employees shall not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.” In situations where it is proposed that more employees be added to an existing unit, however, the employer would be required to show that there exists an “overwhelming” community of interest between the additional employees and those in the existing unit, and that the additional employees “have little or no separate identity” from the established unit.
The rule provides for brief 10-minute debates and a vote on four amendments offered by Democratic members of Congress. The first of the four amendments – none of which are expected to pass – would permit the Board to impose sanctions on a party that presents “a frivolous or vexatious filing during pre-election proceedings.” This amendment was offered by Rep. Tim Bishop (D-NY).
Rep. Leonard Boswell’s (D-IA) amendment would apply the Board’s proposed election rule to any employer that has “paid any executive compensation bonuses in excess of 10,000% of the annual compensation of the average employee” to prevent them “from engaging in open-ended litigation.” According to Boswell, this amendment would require such employers to “state their issues or positions at the outset of pre-election hearings,” and prohibit them “from raising new, frivolous issues as a dilatory tactic.”
Rep. Tim Walz (D-MN) offered an amendment that would prevent H.R. 3094 from applying to businesses that have been cited for violating labor laws in the past year against employees who are veterans of the Armed Forces.
Finally, Rep. Sheila Jackson Lee’s (D-TX) amendment would strike a portion of the bill “to ensure that employers would not be able to unnecessarily delay an election.”
This bill was the focus of a congressional hearing held on October 12. Following this hearing, the House Committee on Education and the Workforce on October 26 held a markup session of this bill, and voted 23-16 along party lines to advance the measure. The House Rules Committee followed suit on November 17. Although a date has not yet been set, it is anticipated that the House floor will vote on the measure after the Thanksgiving recess.