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The Most Damaging Decision of the National Labor Relations Board Requires an Immediate Legislative Remedy

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

Editor's note: This column was authored by Peter Schaumber.

The Associated Press recently described legislation aimed at reversing certain decisions of the National Labor Relations Board as merely a Republican response to “union-friendly” decisions of the Obama Board (Sam Hananel, “Labor Board Headed For Gridlock Again,” Associated Press, 10/28/11). The AP misses the real story: the NLRB decisions addressed by these legislative proposals are inconsistent with fundamental principles of American labor law and threaten to destabilize labor relations in the United States and further undermine the U.S. economy.

One of the most damaging of these decisions, known as Specialty Healthcare, swept aside decades of labor law developed by Republican and Democratic Board members alike. In this decision, the Obama Board authorized unions to represent tiny groups of employees (“micro-units”) — as small as two or more employees performing the same job in the same location. So instead of a traditional unit of all retail sales clerks, there could be a unit for those who sell cosmetics, another for those who sell men’s cloths, a third for housewares, and so on.

The National Labor Relations Act, however, contemplated bargaining units as large as all the employees of the employer, multi-facility or facility-wide. It specifically prohibited the Board from considering a union’s extent of organization as a controlling factor in making unit determinations.

This was not without reason: it is much easier for a union to organize 4 employees than 40. But tiny bargaining units threaten to fragment an employer’s operation into multiple narrow interest groups, which leads to many well-recognized negative consequences. First, employees will be drawn into disputes in which they have no interest, increasing the likelihood of work stoppages and strikes all of which is intensified as different unions with differing goals represent different groups of employees. Second, employees will be thwarted in their desire to move from one job to another as a result of the multiple seniority districts that micro-units will create, and the employer will be deprived of the competitive edge provided by an integrated workforce of employees capable of performing multiple skills. Third, the employer’s labor relations costs will increase dramatically as it will be required to negotiate and apply multiple collective bargaining agreements. Finally, the collective bargaining process will be undermined. It will become an endless series of negotiations with a multiplicity of small units and unrepresented employees each trying to leap-frog over the other.

The intended beneficiary of this radical change in Board law is the union that wants to cherry-pick a tiny group of employees to gain access to an employer and then use that access to organize additional employees. Once it has access, it is not uncommon for a union to seek to extract concessions from the employer—such as a neutrality card check agreement—in exchange for labor peace.

The radicalism of the current Board is a consequence of President Obama’s recess appointment of Craig Becker. Becker’s nomination was the subject of a bi-partisan Senate filibuster (52 to 33) for views considered outside the mainstream. The President’s recess appointment sought to mainstream Becker’s views even though they cannot easily be reconciled with U.S. labor law. For example, Becker believes that an employer should have no role in a union election and that the law should mandate that all employees have a union. For Becker, the question on the ballot should not be whether you want to be represented by the union, but “which union” you want to be represented by. He would endorse minority unions and micro-units are the next best thing.

Becker has had a significant influence on the Board. Fourteen months ago, Wilma Lineman, former NLRB Chairman, formed a majority against Becker in reaffirming traditional board law on the test for determining the appropriate bargaining unit. She refused to adopt Becker’s dissenting views. Her decision to join Becker in Specialty Healthcare was a startling about-face.

Congress cannot wait years for the courts to correct the damage Specialty Healthcare will create. And reversing the Board’s decision is not anti-union or management-friendly: it is simply pro-American.

Peter Schaumber is a former Chairman of the NLRB.

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