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Workforce Committee steps up pressure on NLRB

October 13th, 2011  |  Matt Pavich

2011 has, to say the least, been a year of great strife for the NLRB and the House Education and Workforce Committee that oversees it. Based on recently introduced legislation, the relationship will get worse before it gets better.

Much worse.

In the last month, two bills have been introduced by members of the Committee that would radically alter the Board’s powers to issues decisions and rules.

Legislation introduced last week would seek to either block, or undo, several recent rules and decisions handed down by the National Labor Relations Board. Introduced by House Committee on Education and the Workforce Chairman John Kline (R-Minn.), the Workforce Democracy and Fairness Act (HR 3094) is intended to thwart what Kline referred to as the NLRB’s “activist agenda.”

The Workforce Democracy and Fairness Act takes direct aim at the Board’s recent Specialty Healthcare decision. Under the bill, the Board would have to consider the similarity of wages and other terms and conditions of employment of the employees in the proposed unit, the similarity of their skills and training, whether a central management and supervisory structure exists for all employees, the extent of interaction among the employees, the integration of the employees’ work flow, the consistency of the unit with the employer’s organizational structure, the bargaining history of the unit and industry, and the similarity of job functions. It would also bar “fragmentation of bargaining units” – a frequent criticism of the Specialty Healthcare decision – unless the interests of the proposed unit are sufficiently separate from other employees.

The measure also targets the Board’s recent proposed rule that would change the Board’s election procedures. Under the law, the Board would be required to hold a hearing into any pre-election disputes no more than 14 days after the employer has received the representation petition. The law would also require employers, within seven days of a final Board determination of the appropriate makeup of a proposed unit, to submit a list of all eligible employees. That list would also provide employee names and one additional form of contact information to be chosen by the employee

On Wednesday, October 12, the House Committee on Education and the Workforce will hold a legislative hearing on the Workforce Democracy and Fairness Act.

There is actually a fair amount to like about this bill. Since the Board announced its proposed election rule change, the most constant complaint from employers has been that it would be virtually impossible to respond to an election petition within seven days. This bill would remedy that. It’s also not a bad idea to allow employees to choose how the union would contact them, but care must be taken to ensure that employer don’t lean on employees to choose the option least likely to put the union in contact.

One aspect of the bill, however, raises red flags. The bill appears to remove the right of employers to waive Board review of representation petitions. If that is indeed the case, this bill would clog the system, virtually guaranteeing that no election would occur on a timely basis. Here’s hoping that the Committee will clear this up before sending the bill to the House of Representatives for a vote.

The possibility, of course, remains, given the animosity of the Committee to the Board, that Kline’s bill is intended only to weaken the Board. If so, Kline might be better off supporting another recent piece of legislation. Last month, legislation was introduced in the U.S. House of Representatives that would eliminate the NLRB and transfer its responsibilities to the Department of Labor (DOL) and the Department of Justice (DOJ).

Introduced by Representative Trey Gowdy (R-S.C.) the National Labor Relations Reorganization Act (HR 2926) would abolish the NLRB 30 days after the enactment of the legislation. The bill would then transfer the functions and responsibilities of the Board relating to representation elections to the Department of Labor; the DOL’s Office of Management-Labor Standards would be responsible for the performance of those duties. In addition, the measure would transfer the NLRB’s enforcement duties to the Department of Justice’s Bureau of Labor Relations Enforcement, a bureau that the measure would create. The new bureau would be headed by a director appointed by the attorney general.

In a statement announcing the bill, Gowdy called the Board “a sycophant for labor unions” that he contends “has lost all pretense of objectivity.” Gowdy, who sits on the House Committee on Education and the Workforce that oversees the Board, claims that “the NLRB has outlived its usefulness and needs to be dissolved.” He expressed the belief that the DOJ could easily handle employer-employee disputes and unfair labor practice charges.

Gowdy has been a fierce and at times, disingenuous, critic of the Board. The recommendation here is that the Gentleman from South Carolina should focus on reforming the Board’s processes, not on scoring political points.

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