House Passes Workforce Democracy and Fairness Act While Board Approves Resolution to Change Election Rule
As expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution approving a handful of proposed election rule changes.
As previously discussed, the Workforce Democracy and Fairness Act would set forth eight separate factors that the Board would use to assess whether a group of employees share the requisite “community of interest” to be considered an appropriate bargaining unit. The Board would be required to make this determination before an election takes place. These eight factors are: (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. If an employer seeks to add or “accrete” additional employees to an existing bargaining unit, it would need to prove 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 Act seeks to avoid the proliferation of “micro” bargaining units by stipulating that “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.”
The purpose of these provisions is to overturn the Board’s decision in Specialty Healthcare, 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, thus making it significantly easier for smaller, more fragmented units to be certified.
In addition, the bill would codify the following election procedures:
- Following the filing of a representation petition, employers would have at least 14 days to prepare for a pre-election hearing.
- Parties would be permitted to raise relevant and material pre-election issues as the pre-election hearing record is developed. Such pre-election issues “shall include, in addition to unit appropriateness, the Board’s jurisdiction and any other issue the resolution of which may make an election unnecessary or which may reasonably be expected to impact the election’s outcome.”
- Parties would be entitled to raise independently any issue or assert any position at any time prior to the close of the hearing.
- The date for an election would be set no sooner than 35 days after the petition is filed.
- An employer would provide the union with a list of eligible voters (the “Excelsior” list) no sooner than 7 days after the Board determines the appropriate bargaining unit.
- Employees would be allowed to decide in writing which one form of personal contact information is to be provided to the union.
The House rejected the four amendments offered by Democratic lawmakers.
While the bill was readily approved in the House, it is unlikely to advance in the Democrat-controlled Senate.
Bill an Effort to Block Rulemaking
Many of these provisions would serve as a preemptive strike against the NLRB’s rulemaking efforts to alter the representation election process. The NLRB is expected to issue a final rule that while less sweeping than the original proposal, would still serve to expedite the election process and deprive employers of certain procedural rights. Namely, the resolution discussed during the Nov. 30 meeting would limit the matters that would be resolved at a pre-election hearing; limit the filing of post-hearing briefs; delay Board review and resolution of pre-election issues – including questions of voter eligibility – until after an election is already conducted; and significantly narrow the circumstances under which a request for special permission to appeal to the Board would be granted, among other changes. Anticipating that the Board will lose its quorum at the end of the year when Board Member Craig Becker’s recess appointment ends, Chairman Mark Pearce announced that he was “putting forward a more limited resolution at this time,” although “other portions of the original rule will remain under consideration by the Board for possible future action.”
The Board approved by a 2-1 vote Chairman Mark Pearce’s resolution to amend the election procedures. According to Pearce, this approval is an “interim step” and a final version will be presented to the Board to consider. During the public meeting, dissenting Board Member Brian Hayes – who stated at the meeting today that he was not going to resign his position on the Board – claimed that under the proposal, the time period between the filing of a petition and an election would be shortened. In addition, Hayes argued that the rule would deprive employers of the opportunity to present their position regarding union representation. Another criticism Hayes raised is the fact that the Board has advanced this rule in a “far, far too truncated a procedural manner.”
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