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That was then. In Guide Dogs, after “[h]aving carefully considered the entire record in light of” its new Specialty Healthcare standard, the board approved a unit made up of only a fragment of the employees (12) working in one department. It did so because the employer did not meet its burden of proving by the “overwhelming” evidence required to show that the unit petitioned for by the union was inappropriate. It rejected the employer’s arguments for a larger unit that contained far less than all the employer’s employees but was consistent with the employer’s business operation.
The board’s decision does not bode well for American manufacturers who have relied on long-standing NLRB law that protected the integrity of production and maintenance departments that are functionally integrated operations, not unlike Guide Dogs. Now, such departments are subject to being broken into multiple units at the behest of an organizing union looking to gain easy access into the employer and organize the balance of its employees. It is easier to convince 12 employees to vote for the union than 40 or 50.
The NLRB’s standard in Specialty Healthcare threatens to wreak havoc on American businesses. Balkanizing an employer’s workforce with an undue multiplicity of units, regardless of the precise size, will drastically increase the employer’s labor relations costs, undermine collective bargaining, and deprive employers and their employees of the stable and harmonious working environments necessary for production.
Congress can protect the American worker and his or her employer by voting to prohibit the NLRB from using appropriated funds for this purpose.
Republican Sen. Lindsey Graham — alerted to the agency’s hyper-partisanship by its unprecedented Boeing complaint (the acting general counsel sought to create more union jobs by closing down Boeing’s new $1 billion plant built in Charleston, S.C.) — has proposed an amendment that will do just that.
Soon, Graham’s amendment will be voted on by the Senate Appropriations Committee. Last year, a similar amendment did not make it out of committee; it received a tie vote 15-15. This year, members of the committee have the benefit of board decisions implementing its new standard such as Guide Dogs, the dramatic change it makes in long-standing respected NLRB law and the harm it poses for the workplace and the economy. The amendment deserves overwhelming committee support.
Peter Schaumber served as chairman of the National Labor Relations Board from 2008-2009.