Former NLRB Member: Board to Rewrite Organizing Law, Ignore Federal Rulemaking Requirements
In The Hill's Congress Blog today, former National Labor Relations Board Member and Chairman Peter Schaumber writes about the Board's approach to the closely watched Specialty Healthcare case. Mr. Schaumber warns that the Board appears intent on effecting a major change in national labor policy without resorting to the basic strictures of the Administrative Procedure Act (APA).
Beyond the procedural criticism, Mr. Schaumber also expresses his concern about the substance of the anticipated changes:
A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. Even if agreements can be reached, fragmented units can create lasting legal and administrative costs in applying different agreements and working conditions to a slew of small groups of employees scattered around the workplace. Unit fragmentation also undermines the perceived legitimacy and bargaining strength of unions by severely restricting the size of their constituency relative to the overall workforce. These deleterious affects obviously take on heightened significance in the context of medical facilities, where heightened costs of care and the disruption of operations pose serious risks to public health.
That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit. However, the Board has now signaled a sharp change in direction, one which may impact unit determinations, not just in nursing homes and other non-acute care facilities, but in all industries. The Board in the Specialty Healthcare case recently invited briefs on whether it should abandon decades of precedent and adopt a new rule that would approve units of two or more employees doing the “same job” in the “same location,” without regard to whether those employees comprise a distinct and homogenous group with interests separate from other employees. Under such a new standard, a unit consisting solely of maintenance employees working on the second floor of a nursing home or nursing assistants but not other care givers presumably would be appropriate. As would a unit consisting solely of the trumpet players in an orchestra or wide receivers on a football team, regardless of the sentiments of the other workers with whom they share common interests.
All the more reason why Mr. Schaumber argues that the Board's wide solicitation of amicus briefs is not sufficient. He asserts that the Board must rather follow the APA's rulemaking procedures, "including conducting cost benefit assessments and providing the public notice and a full and fair opportunity to comment." Read the entire piece here.
