Congress Introduces Bill to Combat NLRB Overreach

Last week, Congress introduced a bill that would restore decades-old National Labor Relations Board precedent by overturning a decision that inappropriately eased union organizing drives.

On March 19, Sen. Johnny Isakson (R-Ga.) reintroduced the Representation Fairness Restoration Act that would rollback significant policy changes created in the National Labor Relations Board decision, Specialty Healthcare, which overturned a 77-year-old standard of what constitutes a proper collective bargaining unit.

As I noted at the time of the Specialty Healthcare decision and when Isakson first introduced the bill back in 2011:

The Board in its decision redefined what constitutes an appropriate collective bargaining unit. Prior to Specialty Healthcare, all workers sharing a “community of interest,” such as similar wages, job functions and skills, were grouped together in a bargaining unit. All of these employees would then participate in the organization, and receive the representation of, any prospective union supported by a majority of workers. Only employees with distinct attributes and interests could form a separate union or abstain from representation.

Now the NLRB has determined that when a union petitions to organize employees it can “gerrymander the workplace” into so-called “micro-unions” based on very specific job descriptions. This changed the appropriateness of a unit from a “community of interest” standard to being determined upon “the extent to which the employees are organized.”

However, the Board’s new interpretation of an appropriate collective bargaining unit conflicts with federal law governing private-sector worker rights. Section 9(c)(5) of the National Labor Relations Act “forbids the Board from giving this factor controlling weight.”

Creating micro-unions in Specialty Healthcare is another example of the NLRB dramatically changing labor law through adjudication. Such far-reaching policy change, like changing the makeup of a proper collective bargaining unit, should be left to Congress, not an agency that has exhibited extreme pro-union bias.

Isakson’s bill is an attempt to reign in the partisan NLRB, which Congress intended to represent the public in labor disputes not tip the scales in favor of labor unions over workers and employers. As discussed in the Competitive Enterprise Institute’s Agenda for Congress, a better solution than a piecemeal legislative approach to undo the wrongs the NLRB commits would be to eliminate the Board and transfer its labor disputes to an Article III court or pass legislation that clearly defines and reduces the NLRB’s judicial and regulatory powers.