With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board.
At the top of the “wish list for reversal” are the Board’s joint employer decision, its “quickie-election” rules, and its endorsement of “micro-units.”
Those doctrines, opponents argue, allow labor unions to ignore the wishes of union dissenters and gerrymander groups of employees who most support unionization to maximize the chances of unionization. Because shorter communications campaigns by employers reduce employers’ opportunity to effective communicate their “union-free” message to employees, unions win more often when elections are quicker.
At least some Republicans in Congress are not willing to wait for the Board to rule on appropriate test cases to reverse course.
The “Workforce Democracy and Fairness Act,” H.R. 2776, was introduced by Rep. Tim Walberg (R-Mich.) on June 6, 2017, and received prompt attention from the House Committee on Education and the Workforce. Ten other Republican Representatives have signed on as co-sponsors, and Sen. Lamar Alexander (R-Tenn) has introduced a virtually identical bill in the Senate (S. 1350).
H.R. 2776 would undo many key aspects of the “quickie election” rules, including:
- Requiring any pre-election hearing be held at least 14 days after the filing of a petition (instead of the average 8-10 days before a hearing under the current rules);
- Requiring all relevant and material issues that may moot or impact the election are resolved prior to the holding of the election. (Under current rules, most issues cannot be litigated until after the election); and
- Ensuring that an election is not held sooner than 35 days after the filing of a petition. (Elections are currently held in about 23 days, and sometimes as quick as 11 days, after petition is filed).
H.R. 2776 also would change how the Board analyzes a petitioned-for bargaining unit:
- The Board must determine “the” appropriate unit (rather than evaluate whether a proposed unit is “an” [one of possibly two or more] appropriate unit);
- The bargaining unit must include all employees with a “sufficient” community of interest, according to eight factors, and the burden is on the requesting party to demonstrate that certain employees should be excluded based on having sufficiently distinct interests; and
- Accretions (additions to an existing bargaining unit) must have an “overwhelming” community of interest before they are added.
While unions may “campaign” long before a petition is filed, and may directly ask employees whether they support unionization (which is illegal for employers to do), employers benefit from a longer campaign period to explain its message and perspective on unionization. By emphasizing the importance of inclusion of employees in the bargaining unit, the proposals would prevent unions from carving out dissenters based on slight differences in their particular work, conditions, or environment.
One way or another, expect to see significant changes in the NLRB’s jurisprudence.