Magazine article HRMagazine

The NLRB Flexes Its Muscles

Magazine article HRMagazine

The NLRB Flexes Its Muscles

Article excerpt

Critics contend that the National Labor Relations Board has boosted its support of unions at the expense of the business community.

The labor-management divide has become a key battleground in today's polarized political climate.

As Election Day 2012 looms, the political divisions within Congress and between employers and organized labor are widening, and not just in Wisconsin, where labor helped organize an unsuccessful recall election June 5 of Republican Gov. Scott Walker. Some legislators even argue that the 1935 National Labor Relations Act (NLRA), which gives workers the right to decide if they want union representation, should be repealed.

Others favor keeping the law but defunding the National Labor Relations Board (NLRB), the agency charged with administering it. They claim board members have gone rogue in their support for workers at the expense of the business community.

Union advocates argue that the NLRA has been watered down and become ineffective at protecting workers. They support the board's recent rule changes and decisions they say help level the playing field.

"We are at an incredibly acrimonious time," says Michael J. Eastman, executive director of labor law policy at the U.S. Chamber of Commerce in Washington, D.C. "Normally, the pendulum swings from one administration to the next. This time, it's swung further toward unions than it usually does, leading to the atmosphere we have now."

It's no secret that union supporters view the NLRA as inadequate protection for workers, says Laurence M. Goodman, partner with Willig, Williams & Davidson in Philadelphia, who represents organized labor. "To have meaningful changes, I'd pass something like the Employee Free Choice Act," he says.

President Barack Obama supported the Employee Free Choice Act, a measure labor viewed as a game changer. If the bill is enacted, a union that could obtain signed authorization cards from a majority of workers in a bargaining unit would be certified as the bargaining agent without lengthy campaigns and secret-ballot elections. But the bill has languished in Congress with little prospect of passage.

And so it goes. NLRB rule changes, like those speeding up elections and requiring posting of workers' rights, have been challenged in federal courts. Board decisions, such as one making it easier for unions to handpick the bargaining unit to organize within a workforce, await final word from the courts. In addition, the outcome of a legal challenge to the legitimacy of Obama's Jan. 4 recess appointments of board members is pending.

Micro-Bargaining Units

One of the most divisive decisions came in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), in which United Steelworkers sought to organize only certified nursing assistants at a health care facility, instead of a broader group of workers.

Reversing previous boards' precedents, the NLRB voted 3-1 to permit a union to determine the composition of the bargaining unit it is seeking to organize within an employer's workforce. It's the union's call to decide whether the unit will consist of all or a smaller group of workers who share a "community of interest." In effect, the decision allows unions to cherry-pick workplace supporters and discount those in opposition.

"It is the giftof all time for unions," says Michael J. Lotito, a Littler Mendelson partner in San Francisco. "It gives them the opportunity to determine the classification they can win with."

Under Specialty Healthcare, a union could designate two tuba players in an orchestra and organize just them. To challenge designation of this tiny bargaining unit and change it to cover the entire orchestra, the employer would have to demonstrate an "overwhelming community of interest shared by employees" in the larger group. It subjects the business to proliferation of many costly and unwieldy bargaining units.

"It gives the union a toehold and the opportunity to demonstrate to other employees who may be skeptical what kind of value proposition they provide," states Mark Theodore, a partner with Proskauer Rose LLP in Los Angeles. …

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