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Latest News - April 2011

April 21, 2011
Dem-Led NLRB Poised To Give Unions Big Win
By: Sean Higgins

“The case is a radical departure from decades-old board law establishing what is an appropriate bargaining unit,” said former NLRB.

The National Labor Relations Board is poised to amend organizing rules in a way that would boost unions by letting them target smaller groups of employees.

By law, most organizing efforts must target all people in a workplace. Now the NLRB may let unions cherry-pick the groups easiest to sign up, bypassing other employees for the time being.

That would give unions a toehold in workplaces that they've struggled to organize in the past and may encourage employers to accept full unionization as the least-bad option.

"The case is a radical departure from decades-old board law establishing what is an appropriate bargaining unit," said former NLRB Chairman Peter Schaumber .

Big Labor's membership has fallen to 11.9% of the workforce, including 6.9% in the private sector. Unions have agitated for rules to make organizing easier.

NLRB spokeswoman Nancy Cleland says the board "doesn't comment on pending cases." The AFL-CIO did not respond to a request for comment.

Mike Eastman, executive director of labor policy for the Chamber of Commerce, notes that as recently as last fall, the board voted against these "micro-units" in a casino. The NLRB now appears to be following the ideas of one of its newest members, Craig Becker.

"Becker wrote a dissent in that case," Eastman said. "His essential argument was that as long as all of the employees were doing essentially the same job, that ought to be good enough. We're concerned the board will go in that direction here."

Unions' 'Micro'-Wave

The NLRB case that has sparked this concern is Specialty Healthcare and United Steelworkers. In the 2008 case, the union tried to organize the certified nursing assistants of an Alabama assisted care facility. (Despite its name, the union represents a variety of professions.)

The employer objected, arguing that the effort should include the entire workplace. The case eventually went before the NLRB.

In a late December notice, NLRB's Democratic appointees signaled that they were considering ruling the union effort acceptable not just in this case, but "presumptively appropriate as a general matter."

Brian Hayes, the lone GOP appointee, dissented, noting that the initiative "clearly represents broad-scale rulemaking."

Ruling Expected Soon

Big Business doesn't expect the ruling to go its way. The case could still be appealed to federal courts.

There is no schedule for a decision, but a comment period has ended, meaning it may come soon.

"Since the case is a representation case, there is no direct avenue for appeal and the board could begin enforcing a new standard immediately after the decision is issued," said one attorney working on the case who asked not to be identified.

Current law requires workplace organizing to target a group of people who are a "community of interest" distinct from other workers. They must also form an effective bargaining unit, i.e., be large enough to make demands on management.

Stacking The Deck

In practice, this usually means every worker who isn't a supervisor. That makes most organizing efforts all-or-nothing affairs. For example, an attempt to organize a casino would include all card dealers, croupiers and related workers.

Employers favor this arrangement because large groups tend to be harder to organize.

Under the potential rule change, unions could target just the blackjack dealers if they thought that was their best bet. From there, they could try to expand to include other workers.

This is bad news for managers who might find themselves dealing with unions that don't represent all of their employees but could still wring concessions through strikes or slowdowns.

Worse still for managers, two or more unions could represent different people in the same workplace, a recipe for disputes and division over compensation and work rules.

To avoid these complications, some employers might cut deals with unions that get a micro unit to have them represent the entire workplace. That would fulfill a goal of Big Labor's card-check campaign: to create situations where employers drop objections to organizing efforts.

"It is easy to see how a pressure campaign would work. You get a bunch of small units, then you try to merge them," Eastman said.

Big Labor's Big Labor Board

The NLRB is the federal entity that oversees business/labor relations. The White House and Congress appoint the five board members, but they act independently.

Currently there are just four members, three of whom are Democratic appointees. Chairwoman Wilma Liebman is a former Teamsters lawyer. Craig Becker was the former top lawyer at the Service Employees International union. As an academic, he had written that management should not have a say in workplace organizing.

Congressional Objections

Schaumber, the former chairman, says the proposed rule making is the board's attempt to enact card-check-like rules by fiat.

"The current board majority considers itself charged with the duty of promoting unionization," he said, "not a neutral body charged with the responsibility of protecting employee rights while balancing the legitimate interests of unions and management."

Lawmakers have noticed. Sens. Mike Enzi, R-Wyo., Johnny Isakson, R-Ga., and Orrin Hatch, R-Utah, sent the board a letter last month arguing that only Congress could enact the proposed change.

If Congress decides that the NLRB overstepped its bounds, lawmakers could try to stop the ruling by pulling NLRB funding for it.



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