In a move eagerly anticipated by labor and dreaded by employers, the NLRB today issued its decision in Specialty Healthcare. I’ve referred to this case several times over the last few months, and for good reason. The case presented the NLRB with a chance to redefine what constitutes a unit of employees that’s appropriate for bargaining.
The NLRB seized the opportunity to, in the words of board member Brian Hayes’s withering dissent, “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” (emphasis added).
In other words, a union may now cherry-pick for organizational purposes only those employees it believes support the union, and the burden falls on the employer to show that other employees should be in the unit because the excluded employees share an overwhelming community of interest with the union’s cherry-picked employees.
Bottom line: It will be significantly easier for unions to organize almost any workplace, thus stemming the steep decline in private-sector union membership. Workplaces previously thought by employers to be insulated form organizational efforts now are much more vulnerable, almost as vulnerable as they would have been had the Employee Free Choice Act passed.
I’ll address this in greater detail shortly, along with a companion case issued today, Lamons Gasket.
— Peter Kirsanow is a former member of the National Labor Relations Board.
The campaign ads are practically writing themselves today. I just can't understand how any political operation--regardless of the politics involved--could ever be so damned tone deaf.
Reply to this commentLinkReport AbuseIs there really nothing we can do about this? This seems like an absolute assault on our republic. A bunch of unelected board members can just completely destroy the entire economy?! REALLY?!? How is this possible?! This must...MUST be stopped.
Our country is really flushed down the toilet. I'm just so disgusted right now.
Reply to this commentLinkReport AbuseBlame Congress for writing really bad law. Executive agencies have far too much leeway in how they fulfill their mission.
Reply to this commentLinkReport AbuseQuite. Most of what passes for legislation is little more than gaseous policy aspirations.
Until Congress is forced to write law that requires no regulatory interpretation, this danger will persist. But that is hard work which distracts from the real business of re-election campaigns.
The fact there exists a field called "Administrative Law" means the Constitution was effectively eviscerated generations past.
Reply to this commentLinkReport AbuseNice of you and a few others to notice that we are in deep yogurt.
The seeds of the Obama Administration were planted in the regulatory apparatus of the US government generations ago. All that was required to open the gates was to have a sufficiently aggressive Administration to push the envelope on bureaucratic diktat concurrently, on multiple fronts. The presumption that reasonable people would always be near the switch to mitigate the inherent danger has been dramatically invalidated.
Despite the evidence on the ground that any set of rules will be reduced to absurdity by opportunists seeking advantage and/or power, many persist in foolishly trusting government. Exhibit A is the Obama Administration. You can undoubtedly finger other bad examples preceding this one.
Reply to this commentLinkReport AbuseAny Republican congress (w/Repub president) that doesn't dissolve all these foolish committees like the NLRB et al... deserves the eternity in the political wilderness that will invariably follow, and the rest of us will deserve the inevitable slide into third world life for voting in such fools.
Reply to this commentLinkReport AbuseIs there a tipping point? It is almost too much to read this stuff day in and day out. What will we be left with after Obama? Will there be an after Obama or will it just be another Obama clone. I mean it seems there is nothing we can do to stop these assaults. USSR here we come.
Reply to this commentLinkReport AbuseSo, how can these decisions be overturned? Is it just a matter of electing a new (hopefully anti-union thug) President to nominate new board members? Can a new NRLB membership just overturn the decisions of an old one? I know congress can pass new laws restricting the NRLB's power and prevue, but unless we have 60 Senators, that route is unlikely. What can realistically be done about this?
Reply to this commentLinkReport AbuseDefund!! Dismantle..
Reply to this commentLinkReport AbuseHere is one thing I know. Peter Kirsanow was never an appropriate choice for NLRB. Notice how he describes companies as "vulnerable" to unionization, as if private sector unions are some sort of malignant disease.
That doesn't sound like the words of someone capable of balancing the interests of labor and management in a fair and neutral way.
Reply to this commentLinkReport Abuse"as if private sector unions are some sort of malignant disease."
Why do you consider that to be an innaccurate description of unions?
Reply to this commentLinkReport AbuseCome on, Mark, give credit where it's due. PUBLIC sector unions are a malignant disease. *Private* sector unions are more like a mosquito potentially carrying malaria or dengue fever.
Reply to this commentLinkReport AbuseI drive past an empty ford factory frequently. five million square feet of idle.
This is in Ohio so a combination of malignant unions (the UAW) and the nasty business environment in the state drove Ford away.
I was approached by a contract driver, a guy who drives the trucks with the finished cars to their next destination, he was livid. The UAW demands were going to result in him losing his job. Sure enough Ford shuttered the plant, laid off everybody and let the weeds grow through the cracks in the parking lot pavement.
And what was the UAW protecting? My neighbor who was being paid $35/hour plus bennies to balance tires.
Did you get that? 35/hour to balance tires. He had a lot of seniority and he had his eye on the job of tool cart driver. In that job he would simply drive around in an electric golf cart delivering small tools to guys on the line.
35/hour.
Yeah, that makes sense. Right.
Reply to this commentLinkReport Abusethat's no mosquito. That's a tapeworm.
You are entitled to your own political opinion as far as unions go.
That said, such a virulent biased anti-union opinion would render you (just as it renders Peter Kirsanow) unqualified to be a member of the NLRB. How can such a person administer the law in a fair and neutral way?
Reply to this commentLinkReport AbuseGiven that the current NLRB is so in the tank for the unions, they're trying to rule where a company can expand...
"That doesn't sound like the words of someone capable of balancing the interests of labor and management in a fair and neutral way." Seems to be a job requirement
Reply to this commentLinkReport AbuseMy solution: Require the union to define for you, the employer, *EXACTLY* waht defines that group as a unit - down to very precise explanations of why *every* other employee -isn't- included. Then ensure that when you negotiate, tighten the category just a little further, and sign any union contract for *only* those people. Make sure you don't define the contract as applying to people in certain jobs, but only to people in the group, then hire people who don't fit the group to do their jobs.
Reply to this commentLinkReport AbuseWhat was Hobbes's famous line? "If businessmen were angels, we would need no regulations."
Reply to this commentLinkReport AbuseBut unions are angels?
Reply to this commentLinkReport AbuseUnions as angels--only in matrimony.
I think mankind invented business regulations centuries before he contrived union schemes. Too bad man will still be stuck with business regulations well after the demise of all unions. The sun also rises.
Reply to this commentLinkReport AbuseThis NLRB decision is lousy, as is their attack on Boeing. But occasionally, their regional offices actually make correct decisions. There is a fight going on between the ILWU in Longview, Washington and a new company at the Port of Longview (EGT), where the company is trying to do their business there without the monopoly ILWU. The NLRB in Seattle has just filed a complaint against the ILWU for "aggressive picketing" and other charges, coming down on the side of the company. This is a surprise, but a good one. Let's hope that the common sense of the Seattle office in this case rubs off on the national board.
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