The Board in its decision redefined what constitutes an appropriate collective bargaining unit. Prior to Specialty Healthcare, all workers sharing a “community of interest,” such as similar wages, job functions and skills, were grouped together in a bargaining unit. All of these employees would then participate in the organization, and receive the representation of, any prospective union supported by a majority of workers. Only employees with distinct attributes and interests could form a separate union or abstain from representation.
Now the NLRB has determined that when a union petitions to organize employees it can “gerrymander the workplace” into so-called “micro-unions” based on very specific job descriptions. This changed the appropriateness of a unit from a “community of interest” standard to being determined upon “the extent to which the employees are organized.”
However, the Board’s new interpretation of an appropriate collective bargaining unit conflicts with federal law governing private-sector worker rights. Section 9(c)(5) of the National Labor Relations Act “forbids the Board from giving this factor controlling weight.”
The House Education & Workforce Committee lays out the negative consequences and compliance costs on employers from permitting micro-unions:
“· Creating division and discord in workplaces. Unions will compete against other unions within a single business over wages, benefits, work hours, and other issues. Employees will also have fewer opportunities to advance in their careers, as future job opportunities within the business may be represented by a competing union.
· Burying businesses under costly union red tape. Employers will be forced to bargain with multiple unions and engaged in almost constant labor negotiations. This is especially harmful to small businesses that do not hire a full-time staff of lawyers and human resource managers. Raising employers labor costs will destroy jobs.”
However, more disturbing than imposing the micro-unions policy is the NLRB’s use of adjudication to make far-reaching policy changes normally and appropriately left to the regulatory process or Congress— in other words, the NLRB is regulating/legislating by judicial fiat.
Senator Orrin Hatch, Johnny Issakson and Michael Enzi explain this phenonon in an amicus brief:
“Since 2010, the Board has invited parties to submit briefs in at least six other significant decisions. The number of cases within this short time frame in which Board has announced its intent to implement significant policy changes raises concerns that the Board may be forcing policy through adjudication that should be properly considered through rulemaking, thereby circumventing the protections of the APA. This emerging trend at the Board and its outcome may well warrant future Congressional oversight and limitations.”
This enables the Board to subvert the standards of our open rule-making process like the Administrative Procedure Act, which is the primary law bringing transparency and accountability to our regulatory system.
If the NLRB had implemented micro-unions through the rule-making process, it would’ve been subject to the APA safeguards. For example, the APA requires the regulating agency to estimate compliance costs and the impact on the efficiency of small business before making final regulation. In addition, the rule would be subject to a public comment period and economic impact analysis.
So while Rep. Price’s bill is a valiant effort toward remedying the wrongs committed by the NLRB, the Board members clearly view themselves as above the law. Therefore first and foremost on Congress’ legislative agenda should be either 1) eliminating the NLRB or 2) passing legislation to clearly define its the rule-making and judicial powers.