Vice President, Labor Policy, U.S. Chamber of Commerce
July 05, 2017
The House Committee on Education and the Workforce on June 29 approved three bills to reform federal labor policies under the National Labor Relations Act (NLRA). If enacted, the bills would reverse Obama-era policies that were designed to tilt the field in favor of organized labor during organizing campaigns.
The Workforce Fairness and Democracy Act (H.R. 2776) was introduced by Rep. Tim Walberg (R-MI) and approved by a vote of 22 – 16. The bill would roll back the NLRB’s controversial ambush election rule, which it passed in 2015, and its micro-union policy enunciated under its 2011 decision in Specialty Healthcare.
The ambush election rule dramatically shortened the time period for workplace elections over whether to form a union, and in doing so prevents workers from getting full and complete information from both unions and employers about a critical workplace decision. Prior to the rule, the average amount of time between the filing of an election petition and the election itself was about a month, but the ambush election rule shortened that period to as few as 10 days.
In its 2011 Specialty Healthcare decision, the NLRB threw out decades of precedent regarding what is an “appropriate” collective bargaining unit. Abandoning the long-established preference for units representing all workers in a class or craft, the NLRB decided it would allow almost any bargaining unit suggested by a union, even “micro unions” made up of just a few workers. The policy shift allowed unions to cherry-pick a small number of workers in order to form a bargaining unit, which made it far easier for unions to win an election.
H.R. 2776 would prevent a representation election from happening any earlier than 35 days after the NLRB approves a petition, and it would also require the participation of an entire workplace in the election, rather than a small subset of employees.
The Employee Privacy Protection Act (H.R. 2775) was introduced by Rep. Joe Wilson (R-SC) and approved by a vote of 22 – 16. That bill would roll back a particularly odious component of the ambush election rule that requires employers to disclose their employees’ personal contact information to union organizers.
The ambush election rule forced employers to turn over their employees’ names, home addresses, phone numbers, email addresses, work locations, and work schedules to union officials, whether or not the employees wanted that information disclosed.
H.R. 2775 would give workers greater control over the dissemination of their personal information. It would allow employers seven days to provide a list of employees along with one piece of contact information chosen by each employee, rather than the laundry list required under the ambush election rule.
Lastly, the Tribal Labor Sovereignty Act (H.R. 986) was introduced by Rep. Todd Rokita (R-IN) and approved by a vote of 22 – 16. The bill would reverse the NLRB’s 2004 San Manuel Indian Bingo and Casino decision in which the Board discarded its longstanding precedent to assert jurisdiction over Native American tribes. Prior to that decision, the NLRB had respected the sovereignty of tribes and refrained from interfering with their legal autonomy, but the San Manuel decision stated that the Board would decide on a case-by-case basis whether or not to assert its jurisdiction. The U.S. Chamber submitted a letter to the Committee supporting H.R. 986, which would respect and promote tribal sovereignty by affirming the rights of tribal governmental employers to determine their own labor practices on their own lands.
Having passed out of the Committee, the bills will advance to the full House of Representatives for consideration. One hopes that the House will act quickly to help restore balance to labor policy.