The National Labor Relations Board continues pose many challenges to employers and employees alike with its recent actions involving several cases and proposed rulemakings. Just last week the National Association of Manufacturers submitted formal regulatory comments to the Board that question its authority to issue regulations that would require almost all employers to post or otherwise communicate a biased notice of unionization rights to their employees.
Now the Board continues to hear cases that could set troubling legal precedent and shift longstanding interpretation of labor law. One such case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, 356 NLRB No. 56 (2010). This case is important because it is “representation case”, meaning that there will be no opportunity for direct judicial review and the Board could begin applying its decision immediately in other cases.
The Board’s ruling is expected to reverse 50 years of case law by radically changing the standard for determining an appropriate bargaining unit for all of the estimated six million workplaces covered by the National Labor Relations Act. The key issue is whether employees performing the same job at a single facility presumptively constitute a bargaining unit for organizing purposes, irrespective of any commonality those employees share with other employees outside the proposed unit.
Former NLRB member and labor law expert extraordinaire Pete Kirsanow recently commented on the impact of this case in National Review Online’s The Corner blog. In his piece, Kirsanow explains how this case could ultimately skew U.S. labor law to make it much easier for labor unions to organize workplaces.
Kirsanow identifies other implications. The case could:
- Increase the probability that a workplace will have multiple bargaining units representing different classifications of employees; e.g., one unit of, say, two set-up men, another unit of six press operators, yet another unit of three welders, a separate unit of four packers, etc. etc.
- Increase the probability that a company’s employees will be represented by — and the company must bargain with — multiple unions, e.g., the UAW in one part of the plant, the Teamsters in another, and the SEIU in a third.
- Increase the probability that an employer would have to manage separate work schedules, grievance procedures, wage schedules, and benefits packages for various bargaining units in a single workplace.
- Increase the man-hours a company spends on personnel matters such as discipline, grievances, arbitration, and bargaining.
- Reduce management’s flexibility in matters such as hiring, work assignments, transfers, promotions, layoffs, and overtime.
- Reduce productivity and increase costs
- The Board has historically applied a clear set of standards to determining a unit appropriate for bargaining – this case would turn those standards upside down. We hope that board will adhere to longstanding precedent when determining this case.