Congress Seeks Changes to Union Collective Bargaining

Originally published by: The HillMay 26, 2017

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Federal labor agencies issued numerous regulations during the Obama administration in hopes of boosting union membership rolls. It didn’t work. The latest data published by the Bureau of Labor Statistics on union membership shows the portion of workers belonging to unions hit an all-time low since the government started keeping track.

But that doesn’t mean the avalanche of red tape had no impact. Three labor agencies alone imposed roughly $80 billion in regulatory costs and 400 million paperwork burden hours during the Obama years, many of which often favored "Big Labor" over worker choice or employers.

Now Congress is getting to work to reverse all those labor regulations that are doing more harm than good. Last week, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fla.) re-introduced the Representation Fairness Restoration Act H.R. 2629, which seeks to overturn the National Labor Relations Board's (NLRB) decision in a case concerning union collective bargaining.

The NLRB in the Specialty Healthcare case redefined what constitutes an appropriate collective bargaining unit to make it easier for unions to organize. Previously, all workers sharing a “community of interest,” such as similar wages, job functions and skills, would form a bargaining unit. All of these employees would get a vote in whether or not to unionize, and a union would have to win majority support to win representation over workers. Only employees with distinct attributes and interests could form a separate union or remain non-union.

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.” This permits a union to organize only workers that are likely to want union representation.

The problem is that the Board’s new interpretation of an appropriate collective bargaining unit appears to blatantly conflict with federal law governing private-sector worker rights. Section 9(c)(5) of the National Labor Relations Act (NLRA) says unions can’t just petition to represent a bargaining unit of only employees that are supportive of unionization. They must seek to organize all workers who perform similar functions at a workplace. 

Besides the fact that the decision rests on questionable legal ground, allowing unionization by specific job description stands in sharp contrast to the purpose of the NLRA.

One purpose of the NLRA is to enhance labor-management relations. Allowing micro-unions puts greater strain on this relationship. In a grocery store, for example, multiple unions could potentially seek to organize produce, cashiers, seafood, and deli employees at one establishment separately.

Administrative costs for employers would skyrocket trying to adhere to three or four different contracts with different working conditions, pay, and benefits for employees. Potentially, employers may face constant union organizing campaigns from multiple unions trying to organize small subsets of their workforce. It also would likely devastate employee morale. Since employees would be divided into small bargaining units but still work side-by-side, disparities in wages and benefits in collective bargaining agreements would cause animosity between employees.

In testimony before the Education and Workforce Committee, Eric Oppenheim, Chief Operating Officer and Franchisee at Republic Foods, the parent company of the Burger King franchise, explained the headache the proliferation of micro-unions would have on his business operations. At his restaurants, crew members are cross-trained to perform several job duties—cashier, porter, guest ambassador, kitchen prep, etc.—and help each other out with various tasks during high traffic times. But with multiple unions representing crew members separately, a cashier may be prohibited from helping with food prep due to a union contract, and vice versa.

Importantly, this doesn’t just impair management. Employees will lose out on training opportunities that could lead to advancement. Some employees may want to be trained in various aspects of the business but would be prohibited from doing so because of competing union contracts.

These types of policies create more red tape and strife than they are worth. Congress needs to focus on legislative efforts that support all interests of those participating in the workplace, not just big labor.

It’s telling that unions have not been able to reverse the decades-long trend of plummeting private sector union membership, even with rules stacked in their favor. Instead of using government to get a leg up, unions need to re-evaluate how they operate. Unions may find out that providing real value to workers and employers could do more to relieve them of the need to exclusively rely on government-granted special treatment to attract new members.

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