As expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution.

As previously discussed, the Workforce Democracy and Fairness Act would set forth eight separate factors that the Board would use to assess whether a group of employees share the requisite “community of interest” to be considered an appropriate bargaining unit. The Board would be required to make this determination before an election takes place. These eight factors are: (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. If an employer seeks to add or “accrete” additional employees to an existing bargaining unit, it would need to prove that there exists an “overwhelming” community of interest between the additional employees and those in the existing unit, and that the additional employees “have little or no separate identity” from the established unit. The Act seeks to avoid the proliferation of “micro” bargaining units by stipulating that “employees shall not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”

The purpose of these provisions is to overturn the Board’s decision in Specialty Healthcare, in which the Board held that a union’s petitioned-for bargaining unit shall be deemed appropriate so long as that unit consists of a clearly identifiable group of employees, thus making it significantly easier for smaller, more fragmented units to be certified.

In addition, the bill would codify the following election procedures:

• Following the filing of a representation petition, employers would have at least 14 days to prepare for a pre-election hearing.
• Parties would be permitted to raise relevant and material pre-election issues as the pre-election hearing record is developed. Such pre-election issues “shall include, in addition to unit appropriateness, the Board’s jurisdiction and any other issue the resolution of which may make an election unnecessary or which may reasonably be expected to impact the election’s outcome.”
• Parties would be entitled to raise independently any issue or assert any position at any time prior to the close of the hearing.
• The date for an election would be set no sooner than 35 days after the petition is filed.
• An employer would provide the union with a list of eligible voters (the “Excelsior” list) no sooner than 7 days after the Board determines the appropriate bargaining unit.
• Employees would be allowed to decide in writing which one form of personal contact information is to be provided to the union.

The House rejected the four amendments offered by Democratic lawmakers.

While the bill was readily approved in the House, it is unlikely to advance in the Democrat-controlled Senate.

Many of these provisions would serve as a preemptive strike against the NLRB’s rulemaking efforts to alter the representation election process. The NLRB is expected to issue a final rule that while less sweeping than the original proposal, would still serve to expedite the election process and deprive employers of certain procedural rights. Namely, the resolution discussed during the Nov. 30 meeting would limit the matters that would be resolved at a pre-election hearing; limit the filing of post-hearing briefs; delay Board review and resolution of pre-election issues – including questions of voter eligibility – until after an election is already conducted; and significantly narrow the circumstances under which a request for special permission to appeal to the Board would be granted, among other changes. Anticipating that the Board will lose its quorum at the end of the year when Board Member Craig Becker’s recess appointment ends, Chairman Mark Pearce announced that he was “putting forward a more limited resolution at this time,” although “other portions of the original rule will remain under consideration by the Board for possible future action.”

The Board approved by a 2-1 vote Chairman Mark Pearce’s resolution to amend the election procedures. According to Pearce, this approval is an “interim step” and a final version will be presented to the Board to consider. During the public meeting, dissenting Board Member Brian Hayes – who stated at the meeting today that he was not going to resign his position on the Board – claimed that under the proposal, the time period between the filing of a petition and an election would be shortened. In addition, Hayes argued that the rule would deprive employers of the opportunity to present their position regarding union representation. Another criticism Hayes raised is the fact that the Board has advanced this rule in a “far, far too truncated a procedural manner.”

Dennis Kucinich nailed it:

The right to organize is a fundamental right in a Democratic society. In fact, workers’ rights are human rights. This bill seeks to frustrate workers rights to an election through attacking the National Labor Relations Board (NLRB).

Today, workers have to wait an average of 101 days to cast a ballot in an election. One hundred and one days to wait for union representation. How long should workers have to wait to be able to assert their fundamental rights in a democratic society if we really believe in democracy?

Some of us believe that when a majority of workers want to be able to have a union, they should be able to do so forthwith. We believe in government of the people. Why, then, would corporations want to block or frustrate the right of workers to organize? I think it’s obvious.

When workers are organized they have the ability to be able to participate in being able to say what their wages are worth. This is about wages, it’s about benefits, it’s about workplace safety, and about working conditions. Workers’ rights are human rights.

This assault on the NLRB is translated into a fundamental assault on our democracy. If we believe in a democracy, then we believe in a right to organize, a right to strike, a right to collective bargaining, a right to decent wages and benefits, a right to a secure retirement, a right to workers to participate in a political process.

This is America. Let’s lift up the standard of workers, not attack it by making the day of their election and claiming a union farther and farther away, almost to the point of nullification. Stand up for the American workers.