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Committee Weighs Kline Bill to Amend NLRA, But Dems See Case Backlogs, Election Delays, BNA's Daily Labor Report

October 12, 2011

Reproduced with permission from Daily Labor Report, 197 DLR AA-1 (Oct. 12, 2011).  Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033)

House Education and the Workforce Committee Chairman John Kline (R-Minn.) Oct. 12 heard vigorous criticism of his bill (H.R. 3094) to amend procedures for resolving questions concerning employee representation by labor unions, acknowledging during a hearing that the committee would have to take a careful look at the proposal to ensure it would not inadvertently prolong the resolution of representation cases.

Several witnesses backed Kline's Workforce Democracy and Fairness Act, which has 15 Republican co-sponsors. But a union lawyer called the bill "grossly unfair" and House Democrats argued that language in the bill, which would amend the National Labor Relations Act, would force the National Labor Relations Board to grant every request for review of a representation case and to delay employee votes for months or years while it dealt with a crippling backlog of such requests.

Kline said that he had no intent to "clog up" the NLRB review process and argued that enactment of his bill, which would establish standards for NLRB unit determinations and set minimum time periods for elections and representation case hearings, is an essential step in curbing NLRB efforts to "promote unionization by stifling employers' free speech and crippling workers' free choice."

Bill Aimed at Representation Case Issues Kline's bill, introduced Oct. 5 (193 DLR A-1, 10/5/11), would amend NLRA Section 9(b), which presently gives the board the authority to determine whether "the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision" of an employer's workforce.

H.R. 3094 would substitute a lengthy provision containing an eight-factor test of whether employees share a sufficient community of interest to be grouped in a single unit. The legislation would provide that the question of whether additional employees should be included in a proposed voting unit would be determined by whether those employees "share a sufficient community of interest" with workers in the proposed unit.

The board held in Specialty Healthcare & Rehabilitation Center, 357 N.L.R.B. No. 83, 8/26/11 (169 DLR AA-1, 8/31/11) that in some cases where the inclusion of additional employees in a proposed unit is disputed, they should not be included unless they share an overwhelming community of interest with the proposed unit. Kline's bill would limit the application of an "overwhelming community of interest standard" to cases involving "proposed accretions to an existing unit."

The bill would also affect NLRB procedures in representation cases. The board has proposed rule changes aimed at streamlining the processing of election cases and reducing the elapsed time in many cases from the filing of an election petition to the actual conduct of balloting. Kline's proposal would limit the board's discretion in representation case proceedings, requiring that the board allow a minimum of 14 days before a pre-election hearing on representation case issues and prohibiting the agency from conducting an election less than 35 calendar days after the filing of a petition.

The bill also would address a controversy over NLRB's proposal that an employer be required before an election to provide the union with home address information on employees, including e-mail addresses. Business groups and some individuals have objected to the proposal. Kline's proposal would provide that the list used in such election cases would include the names of employees "and one additional form of personal employee contact information (such as telephone number, email address or mailing address) chosen by the employee in writing."

Former Board Member Favors NLRB Rollback
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Charlesnext hit I. previous hitCohennext hit, senior counsel at Morgan, Lewis & Bockius in Washington, D.C., represents employers and also served as a member of the board from 1994 to 1996.
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Cohennext hit told the committee that the NLRB's proposed rule on representation case procedures (175 DLR A-1, 9/9/11) provides for a "gimmick of an emasculated hearing" and the imposition of "frenetic time deadlines" to speed the conduct of elections. previous hitCohennext hit said that for a decade, the board has managed to conduct elections within a median time of 38 days from the filing of a petition. In answer to questions from several Republicans on the House panel, previous hitCohennext hit said the board's regulatory proposals were intended to address the low level of union representation in private sector employment.

The management lawyer criticized the board proposal as leaving too little time for employers to communicate with workers about upcoming representation elections and too little time for employees to become informed about whether they should or should not support unionization.

previous hitCohennext hit also criticized the board's Specialty Healthcare ruling, and confirmed comments by several legislators that the ruling may allow NLRB certification of small, fragmented units of employees that exclude other workers who have not been successfully organized by unions.

"For decades," Cohennext hit said, "when determining whether an exclusion is appropriate, the board has examined whether a group of employees is sufficiently distinct to warrant their exclusion. The board's new standard in Specialty Healthcare, however, reverses that process so that employers have the burden of proving that the excluded employees share an overwhelming community of interest with the employees included in the union's petition."

"The board's new standard will understandably facilitate union organizing," Cohennext hit said, arguing that adoption of legislation is necessary to restore proper functioning of the board's election procedures. Kline's bill, he contended, would simply return the NLRB to the status quo that existed before its announcement of Specialty Healthcare.

Management Witnesses Outline Concerns

Robert G. Sullivan, a labor and employment relations consultant, appeared on behalf of the Retail Industry Leaders Association, whose membership includes more than 200 companies.

Sullivan told the committee that retail business managers depend on flexibility in running their businesses, including the freedom to move or reassign employees in reaction to business needs. Retailers have been alarmed that Specialty Healthcare will allow a proliferation of "micro-unions" in the workplace, leaving managers stymied by multiple union demands and objections to transfers or cross-training of workers.
The RILA witness also argued that employees profit from cross-training and opportunities to gain experience in different jobs and retail departments. "Among the executive ranks of RILA's members are many who started their careers working on the floor of a store," Sullivan observed.

Phillip B. Russell, a shareholder in Ogletree, Deakins, Nash, Smoak & Stewart in Tampa, Fla., agreed that a proliferation of bargaining units in a single business can create an "administrative nightmare," and he warned that NLRB actions fostering such proliferation would cost businesses money.

But Russell said the NLRB's proposed representation case rules threaten employees as well as employers and he charged the board with "ignoring employee rights in favor of union rights." Stating that all employees should have the right to vote-"not just a handful of employees handpicked by union organizers"-Russell said he supports H.R. 3094 as a measure to give employers a reasonable chance to respond to NLRB proceedings.

Russell also said the bill would take an important step in providing a minimum interval of 35 days between the filing of a union petition for an election and the actual conduct of balloting. Given a reasonable opportunity to weigh the question of union representation, Russell said, "they will get better information" on an important issue. Union Lawyer Criticizes Proposal

But Michael J. Hunter, a partner in Hunter, Carnahan, Shoub, Byard & Harshman in Columbus, Ohio, who worked as a union organizer before going to law school and becoming a union-side lawyer, had a considerably different view.

Hunter said Kline's bill was misnamed as the Workforce Democracy and Fairness Act. "In my judgment," Hunter told the committee, "the proposed legislation promotes neither fairness nor democracy, and is aimed at aiding not the workforce but those who, without the presence of union representation, exercise largely unfettered control over it." Hunter noted that H.R. 3094 would delete from the NLRA language that authorizes the board to make unit determinations and would replace it with language that Hunter referred to a "a set-in-stone, one size fits all test." The bill provides:

"In determining whether employees share a sufficient community of interest, the Board shall consider (1) similarity of wages, benefits, and working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer's organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry."

Conceding that the factors cited in the bill are among those often considered in making an appropriate unit determination under the NLRA, the union-side lawyer argued that the language of the bill will be understood to mean that the board should consider the eight cited factors "and none other." That consequence would improperly restrict the board in the performance of its function of interpreting the act, he argued.

Hunter also noted that the board adopted a regulation (29 C.F.R. §103.30) on bargaining units in acute care hospitals, identifying eight different employee categories that may constitute appropriate units. Hunter argued that enacting H.R. 3094 would mean the board rule would be "out," and he warned it would be "back to the races" for employers and unions to figure out the impact of the bill on health care institutions.

Hunter also was critical of language in H.R. 3094 that would allow parties appearing in an NLRB pre-election hearing to raise at any time any issue "which may make an election unnecessary or which may reasonably be expected to impact the election's outcome." Hunter said the language was vague and subject to abuse by employers interested in delaying election proceedings. But Cohennext hit called the claim a "red herring," observing that NLRB regional office employees have had years of experience in conducting representation case hearings and limiting the parties to the introduction of relevant evidence.

Minor NLRA Change Called Major Problem

Some of the most vigorous criticism of the bill concerned its proposal for a six-word addition to Section 9(c)(1)(B) of the NLRA. The act currently contains a provision that if the NLRB finds "upon the record" of a representation case that question concerning representation exists, the board shall direct an election by secret ballot.

H.R. 3094 would make several changes to Section 9(c)(1)(B), including changing the phrase "upon the record of such hearing" to "upon the record of such hearing and a review of post-hearing appeals." Under current law and NLRB practice, the board exercises discretionary review of the decisions made by regional directors after a representation case hearing. Hunter argued before the House committee that the additional reference to "post-hearing appeals" would change the act to require that the board would no longer have discretion, and would be required to hear every post-hearing request for review of a regional director's decision before an election could be conducted.

Ranking Member George Miller (D-Calif.) questioned Hunter about the consequences of enacting the language, and the union-side lawyer said that the proposed statutory language would prohibit the board from conducting an election until every request for review in a case had been disposed of.

The board currently only accepts for review a small number of the cases in which review has been requested. H.R. 3094 would require reviewing a much larger number of cases, the lawyer argued, and he said "it's going to take years" to reach an election in some cases. Miller said it appeared that "even a mildly determined employer" would take advantage of a review process that guaranteed a delay in balloting.

Stating that he would hope H.R. 3094 would undergo extensive revisions before the committee is asked to vote on the legislation, Miller said the bill "really, really strips rights of workers" by changing NLRB procedures that worked effectively for many years. Kline said his concern has been to address board actions that he called "injurious to workers," not to complicate the NLRB review process. If clarification of the bill is needed, the committee will look at appropriate action, he said.