On the same day that the National Labor Relations Board (NLRB) voted to pursue a final rule implementing parts of its controversial ambush election proposal, the U.S. House of Representatives passed by a 235-188 vote a bill that would roll back the both that rule and another NLRB decision permitting micro-unions within a workplace. Rep. John Kline sponsored the Workforce Democracy and Fairness Act in response to the NLRB’s ongoing effort to tilt the board’s policies in favor of labor unions, a situation brought about by raw pro-union activism.
The original ambush election proposal was an attempt to deliver a major leg up for unions, who have bitterly complained for a long time that employers exercise their rights to free speech in opposition to organizing campaigns. The proposed rule would have eviscerated employers’ ability to respond to those campaigns by drastically condensing the time between a union organizing petition and an election and curtailing rights to appeal, among other things. While Chairman Mark G. Pearce’s amendments did omit some of the more controversial aspects of the proposal, the House passage of Rep. Kline’s bill demonstrates that Congress is not willing to tolerate the NLRB’s lopsided favors for unions. His bill guarantees that employers would have at least 14 days to respond to a union organizing petition and be able to continue pre-election appeals rather than be forced to wait until after an election takes place. More importantly, union elections could only be held after 35 days following an order of election, thereby guaranteeing both the employer and its employees the right to freely discuss and debate whether having a union was in their mutual best interests—the one thing unions and their NLRB allies seem intent on preventing.
The bill also would reverse the NLRB’s ill-considered decision in Specialty Healthcare, which upended longstanding board precedent by opening the door for micro-unions in the workplace. The board’s decision in that case essentially handed the power to determine the scope of a bargaining unit to unions by requiring employers to meet an almost impossible standard to refute a union’s proposal. As with the ambush election rule, the goal of this decision was to make it easier for unions to organize employees by allowing them to cherry pick smaller groups of employees to represent, thereby reducing the total number of votes needed in favor of unionization. By codifying the board’s previous, long-held precedent, the bill would thwart the NLRB’s fatuous decision and avoid the proliferation of bargaining units with a multiplicity of wages, benefits, and work rules that could cripple an employer.
It is now up to the Senate to approve the Workforce Democracy and Fairness Act, which it should do as soon as possible to restore the important balance currently missing at the NLRB.
Workers would lose the private ballot, be forced to pay union dues, or be told they could no longer work as an independent contractor.
Thomas J. Donohue
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