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It's "Wonderland" at Obama's Labor Board

The opinions expressed by columnists are their own and do not necessarily represent the views of
“If I had a world of my own … [n]othing would be what it is because everything would be what it isn’t,” said Alice in Alice in Wonderland. Well, so it is at President Obama’s National Labor Relations Board (NLRB). The board is making sea-changes in law and procedure, but it characterizes them merely as “modest” and “routine.” Consider three cases in point – the Boeing complaint, the “ambush election” rule and Specialty Healthcare or micro-union decision – in which the board made radical departures from past policy and described them not by what they are but by what they are not.

First, the Acting General Counsel, Lafe Solomon, described the board’s Boeing complaint as “routine and not unprecedented,” despite the fact that it was inconsistent with controlling law and sought an unprecedented order dictating to an American manufacturer where it could produce additional product. And Solomon defended the accuracy of the complaint’s pivotal allegation that Boeing’s opening of a new plant for additional production was a “transfer” of unit work because the work “could have been done” by Boeing’s unionized employees in Washington State. Mr. Solomon needs to read a dictionary’s definition of “transfer.”

Second, the board’s chairman, Mark Pearce, used the same Wonderland language to blunt public criticism of the far-reaching “ambush election” rule. He repeatedly describes as “modest” the sea change in board election law and procedure made by the new rule that he and former board Member Craig Becker rammed through the agency last December on the vote of only two members. Modest? Then why all the rush? Because the rule cut in half the time for a union organizing election, limiting the ability of employers to secure legal counsel and to express their views on unionization to their employees. Although the unions’ election win rate hovers near 70% today and the elections themselves take less than a median time of 40 days, unions win more elections when the employer is effectively muzzled by a narrow election window.

The rule accomplished this shortened schedule by moving board resolution of heretofore pre-election issues to after the election. Resolution of these issues often determines whether an election should have taken place at all. This change if reinstituted in a newly promulgated rule (the rule’s effective date has been put off due to a federal judge finding that the two members that issued it acted unlawfully) will also deprive employers of the freedom to decide whether to contest the results of the election and its obligation to bargain with the union. Under the rule, the employer contests the election at its peril: if the employer loses (which is highly likely at least before this Obama board), it can be required to return the workplace to the conditions that existed at the time of the election, a sometimes difficult and costly proposition. This, too, is like Wonderland: first the verdict, then the trial.

And to deflect attention away from the sweeping changes it made in perhaps its most damaging decision, Specialty Healthcare or the micro-union decision, the board has resorted to descriptions worthy of a fairy-land. For a half-century, every board has followed the statute that favors larger collective bargaining units. Every board has chosen to avoid the universally recognized dangers inherent in an undue proliferation of bargaining units: the balkanization of the workplace, nearly constant and sometimes disruptive collective bargaining, dramatic increases in an employer’s labor relations costs and numerous other problems. But Specialty Healthcare flipped board law to favor micro-unions – small sub-groups of employees doing the same job in the same location – which threatens the proliferation that all prior boards sought to prevent.

You would not think micro-unions were such a big deal, however, if you listened to what the board was saying about it. For example, the official press release was misleadingly titled: “Board issues decision on appropriate units in non-acute health care facilities.” Only in the text of the release did the board’s public relations office disclose that the decision actually applies to every industry throughout the nation over which the board has jurisdiction. And the press release mischievously minimized the decision’s reach, describing it simply as an effort to “clarify” the criteria for units in a certain situation – when an employer wants a larger unit. But that “certain situation” has the potential for being every situation – every election petition filed by a union because Big Labor favors micro-unions that are easier and less expensive to organize. Also, labor organizers care little about unit proliferation and its deleterious consequences on the workplace when the choice is between proliferation or no unit at all. Finally, the “clarification” the public relations office describes is, in fact, a monumental change in board law that shifts to the employer the burden of proving by “overwhelming” evidence that a larger unit is necessary.

But the board majority outdid itself when it sought to explain why it was rejecting widespread concern that its decision would result in an undue proliferation of micro-unions. The majority offered two responses. First, “none of the parties or amici has offered any evidence” of proliferation. But that is because board law for more than a half-century used a standard for unit determinations that wisely and successfully guarded against the undue proliferation of bargaining units. Second, the majority said that the concern about over-proliferation” does not comport with our experience in labor relations.” Well, then, what was the majority’s experience? The majority did not say.

At the conclusion of its decision, the board insisted that the changes it was making were “relatively modest.” It accused Brian Hayes, the dissenting board member, of continuing to make “extraordinary accusations,” such as that its decision “fundamentally changes the standard for [unit] determin[ations] … in any industry over which the board has jurisdiction.”

A few weeks ago, the agency’s Manhattan Regional Director demonstrated that Hayes was correct. Relying on the board’s decision in Specialty Healthcare, the director upheld a union’s request for a micro-union of Bergdorf Goodman sales associates that sold only women’s shoes. Under prior board law, there was an industry presumption in favor of selling and non-selling employees; however, under the board’s new standard, retail department stores are threatened with being split up into multiple sub-groups of employees based on the type of merchandise they sell. No matter how the board tries to describe it, Hayes was right: the board has fundamentally changed the standard for all industries relied on for more than a half-century.

The recent board grant of review of the regional director's decision is unlikely to result in a change in the law established by Specialty Healthcare. It is far more likely that the board will simply correct any misstatements of law or fact in the regional director’s decision and affirm the result in favor of the micro-union.

When President Obama issued his commitment to openness and transparency in government he said, “My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.” The President’s appointees on the National Labor Relations Board appear to have thumbed their noses at the President’s pledge and instead have engaged in a campaign of purposely misleading understatements to hide an extreme partisan agenda that harms the workplace, kills jobs and eliminates worker rights, but exclusively benefits Big Labor bosses.

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