Author: serpnames

  • Former NLRB Chairman: NLRB Skirts Formal Rulemaking Requirements | Big Labor Bailout

    Peter C. Schaumber, former chairman of the National Labor Relations Board, opines today on the impact the NLRB’s pending decision on the Specialty Healthcare and Rehabilitation Center of Mobile case will have on workers and small businesses.

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    Specifically, the Board has announced its intent to reconsider the standards that have governed for decades what constitutes an appropriate unit for purposes of union representation and collective bargaining. The Board, over a strident dissent by the lone Republican member, has done so in the context of adjudicating a single case, one in which no party requested such a sweeping review of existing law. The Board’s actions are questionable both as a matter of substantive policy and administrative procedure, and smack of an effort to achieve through agency fiat radical statutory changes Congress has declined to enact.

    The case at issue, Specialty Healthcare and Rehabilitation Center of Mobile, arises in the health care industry. That industry was singled out by Congress and the Board for specialized treatment due to the unique needs and considerations applicable to medical facilities. In particular, Congress directed the Board to give due consideration to preventing the proliferation of bargaining units within such facilities, and the Board itself recognized during its healthcare rulemaking proceedings in the late 1980s that “large-scale splintering of the [healthcare] work-force” was inconsistent with sound public policy. Though the Board’s healthcare rule did not in its final form extend to nursing homes and other non-acute care facilities, the Board has, for more than 20 years, applied a unit determination standard to nursing homes that considers a number of factors, including those deemed relevant in the acute care rulemaking.

    Indeed, in formulating the standard applicable to nursing homes, the Board specifically noted its earlier findings during the rulemaking process concerning the greater functional integration within nursing homes, suggesting that smaller, fragmented units of employees would be less likely to be found appropriate in such facilities. For more than two decades, the Board has adhered to that measured approach, generally declining to splinter sub-groups of nonprofessional nursing home employees into separate sub-units.

    Why is the determination of the appropriate unit significant? Generally, smaller units are favored by unions because they are easier and less expensive to organize; union agents can target small subsets of disgruntled employees within a broader workforce. Once a foothold is gained, union agents enjoy broader access rights and can seek to make incremental gains among other segments of employees, with the ultimate objective of securing representation of the entire facility, albeit in separate units. But a proliferation of small units fragments the workplace and has substantial negative consequences on the employer, the long-term interests of employees, and the collective bargaining process.

    A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. Even if agreements can be reached, fragmented units can create lasting legal and administrative costs in applying different agreements and working conditions to a slew of small groups of employees scattered around the workplace. Unit fragmentation also undermines the perceived legitimacy and bargaining strength of unions by severely restricting the size of their constituency relative to the overall workforce. These deleterious affects obviously take on heightened significance in the context of medical facilities, where heightened costs of care and the disruption of operations pose serious risks to public health.

    That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit. However, the Board has now signaled a sharp change in direction, one which may impact unit determinations, not just in nursing homes and other non-acute care facilities, but in all industries. The Board in the Specialty Healthcare case recently invited briefs on whether it should abandon decades of precedent and adopt a new rule that would approve units of two or more employees doing the “same job” in the “same location,” without regard to whether those employees comprise a distinct and homogenous group with interests separate from other employees. Under such a new standard, a unit consisting solely of maintenance employees working on the second floor of a nursing home or nursing assistants but not other care givers presumably would be appropriate. As would a unit consisting solely of the trumpet players in an orchestra or wide receivers on a football team, regardless of the sentiments of the other workers with whom they share common interests.

    Apart from the sweeping nature of the change, the legal process the Board chose to try to implement it is reminiscent of a similar power play at the National Mediation Board (NMB), where the Democratic appointees jettisoned decades of precedent, without meaningful public comment and deliberation — or even involvement of the lone Republican member — to do away with the fundamental requirement that a majority of eligible voters in a unit cast ballots in favor of a union in order to be certified as the bargaining representative. In this case, rather than undertake the same open rulemaking process it followed when implementing new unit determination rules applicable to a single industry, the Board simply issued a short deadline for submitting briefs in the Specialty Healthcare case. Fortunately, that action did not go unnoticed, and triggered a four-page letter to the Board from Health, Education, Labor and Pension Committee Ranking Member Senator Michael Enzi and committee members Senators Orrin Hatch and Johnny Isakson, who criticized the proposal as inconsistent with the NLRA and threatened Congressional intervention if the Board rushed through such a fundamental change in American labor law outside the public rule-making process.

    It remains to be seen whether the unelected Democratic appointees at the NLRB will, like their colleagues at the NMB, skirt the rulemaking process in order to undermine foundational principles of workplace democracy requiring majority support of a workforce in order to impose union representation.

    This entry was posted in Big Labor Bailout, NLRB and tagged NLRB, Peter C. Schaumber. Bookmark the permalink.

  • Sorry Mr. Trumka, They’re Just Not That Into You | Big Labor Bailout

    (First posted on Townhall.com )

    It seems like every few days we see another example of workers giving unions the cold shoulder.

    Over the last three decades, unionization in the private sector has plummeted from 35% to just under 7% today. This is the lowest rate in a century.

    In fact, nine out of 10 Americans currently working in a non-union environment would say “no” to unionization, if given the choice.

    But Big Labor bosses don’t seem to get the message. Instead, they work to force unionization on employees and employers at every turn. They’re like a bad first date who won’t take “no thank you” for an answer.

    And in recent days they have grown increasingly desperate and turned to regulatory agencies to do their bidding. The National Labor Relations Board (NLRB) is tasked with administering to disputes between unions and employers in the private sector. The agency is supposed to be “independent” and is funded with taxpayer dollars.

    Under the Obama Administration, the NLRB has become hyper-partisan with board members like Craig Becker advocating for Big Labor’s agenda resulting in job-killing policies that hurt workers and negatively impact small businesses. Becker is a former lawyer for the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and Service Employees International Union (SEIU), and continues to serve as an advocate for labor bosses in spite of the fact that the American people pay his salary.

    The National Mediation Board (NMB) was created in the 1930s to settle labor disputes in the airline and railroad industries and keep America moving. However, the agency has become yet another place where labor bosses are seeking favors and gifts due to the fact that workers in the railroad and airline industries have repeatedly rejected unionization.

    Instead of standing by the decisions made by workers, the NMB issued a rule change upending nearly a century of precedent whereby a majority of employees were required to vote in favor of the union to form a collective bargaining unit. Two of three NMB members, also handpicked supporters of Big Labor decided that a majority of those voting was sufficient to create a collective bargaining unit even if it meant workers lost their voice and vote.

    Even though it’s the workplace equivalent to being forced into a second date, Big Labor bosses cheered the change of a rule in place since Franklin Delano Roosevelt was president.

    The actions of the NMB were so egregious, that the U.S. House of Representatives recently voted to undo them in its reauthorization legislation for the Federal Aviation Administration (FAA).

    All of this comes on the heels of workers and small businesses thwarting efforts by union bosses to undo democratic staples like the secret ballot. In the last session of Congress, elected officials supported and financed by labor organizations introduced the Employee ‘Forced’ Choice Act (EFCA).

    The legislation would have effectively eliminated the secret ballot by instituting a card check process allowing organizers to coerce and intimidate workers forcing them to support unionization. And after the collective bargaining unit had been formed through fear and harassment, the bill required binding arbitration empowering the government to mandate contract terms on employees and employers alike without their consent.

    The legislation was soundly rejected on Capitol Hill by elected representatives on behalf of their constituents sending a message to Big Labor that said, “don’t call us, we’ll call you.”

    So I have a message for Mr. Trumka and his Big Labor boss pals as they work to force workers into their ranks against their will: “Sorry guys, they’re just not that into you.”