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Employment Newsletter
Published Monday, December 19, 2011 6:00 am

Preston L. Pugh

Jonathan B. Cifonelli

Congress Attempts to Undo NLRB Actions

September and October 2011 saw two Congressional attempts to undo several actions taken by the National Labor Relations Board (NLRB) in 2011. Both legislative proposals will continue to be hotly debated in the 2012 campaign season, and employers should monitor the status of these proposals as they wind through Congress.

Workforce Democracy and Fairness Act

On October 26, 2011, the House Committee on Education and the Workforce voted along party lines to send the Workforce Democracy and Fairness Act (WDFA) to the House floor. It is expected to be voted on sometime this winter. According to Committee Chairman Congressman Kline: "If the NLRB has its way, workers may have as little as 10 days to decide whether or not to join a union, crippling their ability to make a fully informed decision. And micro-unions will proliferate across the country[.]"

Congressman Kline's statement refers to two recent actions taken by the NLRB, both of which the WDFA would undo. The first is an NLRB decision, Specialty Healthcare, 357 NLRB No. 83 (Aug. 30, 2011), which held that certified nursing assistants comprise an appropriate stand-alone bargaining unit. Critics of the decision argue that it may lead to the proliferation of small bargaining units (or "micro units"). Specialty Healthcare abrogated the "sufficient community of interest" test, which had long determined which employees should be included in a bargaining unit. Under the new test, so long as a union's petitioned-for unit is comprised of a "clearly identifiable group" of employees, the NLRB will presume the unit is appropriate. If an employer argues that the unit should include additional employees, it must show that those employees share an "overwhelming" community of interest with those in the petitioned-for unit.


A leading critic of Specialty Healthcare is Peter Schaumber, the Chairman of the NLRB from March 2008 to January 2009 and now a labor adviser to Republican Presidential candidate Mitt Romney:

[A] unit always had to be of a sufficient size to warrant separate group identity thus preventing an undue proliferation of units. . . . Now, a union can cherry-pick a very small number of employees doing the same job in the same location—the cashiers at a supermarket—without regard to whether such a small unit warrants separate group identity from, let's say, the baggers or others on the floor. This drastic revision of the nation's labor law will make it easier for a union to gain access to an employer[.]

The WDFA would essentially reverse Specialty Healthcare by amending the National Labor Relations Act to mandate that the NLRB return to the "sufficient community of interest" test. Under the WDFA, "the unit appropriate for purposes of collective bargaining shall consist of employees that share a sufficient community of interest. In determining whether employees share a sufficient community of interest, the Board shall consider (1) similarity of wages, benefits, and working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer's organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry." H.R. 3094.

The WDFA is also designed to undo a new set of proposed rules from the NLRB regarding union elections. Just as was the case with the debate over the proposed Employee Free Choice Act a few years ago, the NLRB's rules have caused vehement disagreement, with pro business groups concerned that rules would make it too easy for unions to organize. Under the proposed NLRB rules, key time periods in the union election process would be truncated. The WDFA proposes rules that are directly contrary to those proposed by the NLRB:


NLRB Proposed Rules


  • A pre-election hearing will be held within 7 days from the filing of a petition.
  • Parties must complete "Statement of Position forms" before the pre-election hearing.
  • Employers must provide a preliminary voter list to the union before the pre-election hearing, and provide final voter lists within two days after the election is scheduled.
  • Voter eligibility issues will be deferred to post-election challenges.
  • Parties must wait until after the election to appeal a Regional Director's ruling.
  • Post-election disputes will be heard within 14 days of the election.
  • No pre-election hearing can begin in less than 14 days.
  • Both employers and unions will be free to raise any issue or assert any position before the close of the pre-election hearing.
  • All parties will be empowered to ask the full board to review concerns raised during the course of the hearing.
  • Workers will have at least 35 days to weigh the costs and benefits of union representation before voting.


In his dissent in the Specialty Healthcare decision, NLRB Board Member Hayes criticized what he considered a pro-union plan evident in Specialty Healthcare and the proposed rules:

It is not difficult to perceive my colleagues' overall plan here. First, in this case, they define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included I. next, by proposing to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation. This initiative puts our agency beyond the pale of reasoned adjudication.

Protecting Jobs from Government Interference Act.

The WDFA comes on the heels of another proposed bill that would amend the NLRA, the Protecting Jobs from Government Interference Act ("GIA"). On September 15, 2011, along party lines, the House passed the GIA. The bill is currently on the calendar in the Senate. The GIA was drafted in response to the well-publicized April 20, 2011 NLRB's filing of a complaint against Boeing Co. for opening a plant in South Carolina, which the NLRB concluded was an act of retaliation for union activity in Boeing's Washington plants. The GIA seeks to amend the NLRA to prohibit the NLRB from ordering any employer to close, relocate, or transfer employment under any circumstances. The bill would apply to any complaint for which a final adjudication by the NLRB has not been made by the date of enactment.

The NLRB's complaint against Boeing has prompted strong political reaction, and could prompt legal action as well. Last month, Congressman Darrell Issa (R-California) referred to the NLRB as a "rogue agency" after the NLRB refused to produce documents subpoenaed by the Committee. The Committee had requested documents in August 2011 regarding all communications between the acting general counsel for NLRB and the International Association of Machinists and Aerospace Workers, as well as the NLRB and Boeing. In strong terms, Representative Issa accused the NLRB of "continuously obstruct[ing] the Committee's constitutional duty to conduct oversight, and [breaking] the law by effectively ignoring a congressional subpoena. Representative Issa takes further issue with documents obtained by a third party, Judicial Watch, through a Freedom of Information Act request, which the NLRB did not produce to Congress despite purporting to respond to the committee's subpoena. See October 17, 2011 letter from Representative Issa to Acting General counsel for the NLRB Lafe E. Solomon. According to the NLRB's critics, the documents, available at, evidence a pro-union bias among the NLRB's attorneys.

Recommendations to Employers

Employers should consult with qualified labor counsel to consider the impact of the Specialty Healthcare decision on their workforce. In addition, although neither the WDFA nor the GIA is expected to pass through the current Senate or be signed by President Obama, both bills warrant attention in light of the upcoming 2012 election cycle.

Other articles with: Jonathan Cifonelli, Preston Pugh