NLRB Decisions Effect Union Elections and Bargaining Units

The National Labor Relations Board (NLRB) in August issued two decisions that hurt employees’ rights by inhibiting their ability to petition for a secret-ballot election after an employer recognizes a union as a monopoly bargaining agent and by creating a new standard for a bargaining unit.

"These decisions are clearly intended as payoffs to big labor,” said ABC Vice President of Federal Affairs Geoff Burr. “The majority members of the National Labor Relations Board are misusing their powers and have turned the agency from a neutral arbiter of labor law disputes into a political activist organization.”

In an Aug. 26 ruling, the NLRB overturned a 2007 decision in the Dana Corp case that granted employees the ability to file a decertification petition for a secret-ballot election within 45 days after an employer recognizes a union. Under the new ruling, employees are barred from filing a petition for between six months and one year after the first bargaining session.
ABC, as part of a coalition, filed an amicus brief in November 2010 after the board agreed to reopen the Dana Corp case for review. The brief pointed out that in order to test the majority status of a union recognized by card check, the 45-day notice period “provides a narrow but necessary window.” 

NLRB Member Brian Hayes was the sole dissenting opinion. He wrote that the majority’s decision reflects "a purely ideological choice, lacking any real empirical support and uninformed by agency expertise. They have failed to provide any reasoned explanation why the policies they advocate are preferable to the reasonable policies established in the precedent they now overrule."

In the Aug. 30 ruling on Specialty Healthcare, the board ruled that a union could seek to organize a group of nursing assistants, despite requests by the employer to include other employees in the unit. The decision effectively creates a new standard for a bargaining unit, despite the fact that the current 20-year-old standard has been without controversy and it places a heavy burden of proof on the employer to show that the excluded employees should be included. Hayes again dissented.

These decisions came on the heels of other recent actions by the NLRB, including a final rule forcing employers to display a poster in their workplaces containing a select list of employee right and a proposal to dramatically shorten the time between a petition filing and a union certification election. 

“We would not be surprised to see more rulings and decisions from the NLRB in the near future that will take away the rights of hard-working Americans to satisfy big labor bosses,” Burr said.