The Board’s position was put forward by Acting General Counsel Lafe Solomon in a disturbing brief to the Fourth Circuit. It was filed to defend the Obama Board’s highly controversial decision, Specialty Healthcare, which jettisoned 76 years of Board law. The decision authorized unions in all industries over which the Board has jurisdiction to represent bargaining units of as few as two or more employees doing the same job in the same location. Why do unions want these small units? Because, among other things, they are easier to organize.
The Board’s decision threatens an undue proliferation of bargaining units, which Congress, state labor boards and other nations have warned about for years.
The Board Has Always Resisted “Undue Proliferation”
Since its inception in 1936, the NLRB has recognized that an undue proliferation of bargaining units causes unnecessary work stoppages and is inconsistent with the long-term goals of collective bargaining. Therefore, the Board has favored larger units and sought to avoid a multiplicity of smaller units. During Senate debate in 1974 on extending the Board’s jurisdiction to cover non-profit health care institutions, committee Chairman Senator Harrison A. Williams (D-NJ), no stranger to Board law, recognized this fact. He applauded the NLRB and said that as a rule it has “generally tended to avoid the unnecessary proliferation of bargaining units.”
The Board’s efforts in this regard were also clear in 1989 when it proposed adopting a rule that would make a single facility unit presumptively appropriate. In its Notice of Proposed Rulemaking, the NLRB said that the employees’ desire for a single facility unit (as opposed to the employer’s desire for a multi-facility unit) “might be outweighed by concerns over disproportionate, unjustified costs and undue proliferation of units.”
Congress Has Expressly Warned The Board About Undue Proliferation
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