Chamber of Commerce’s recommendations to the NLRB would roll back workers’ rights to the Stone Age

Yesterday, the Chamber of Commerce released ten recommendations to “fix” the National Labor Relations Board (NLRB). The Chamber’s policy suggestions are recycled positions that have been the subject of the nearly two dozen hearings on the agency since Republicans assumed control of the House in 2011. Arguing that President Obama’s board “overturned over 4,500 years of precedent,” the Chamber advances a platform that would roll back workers’ rights to the Stone Age.

Since the NLRB issued its decision in Specialty Healthcare, clarifying the standard for determining an appropriate bargaining unit, corporate special interests have assailed it as inviting the proliferation of “micro” units that will allow unions to gerrymander workforces. The Chamber echoes this argument in advocating for the NLRB or Congress to overturn the decision. However, the NLRB’s standard for determining an appropriate bargaining unit in Specialty Healthcare has been upheld in all seven U.S. Courts of Appeals in which it has been challenged. Data on the median size of bargaining units disproves the argument that the standard would lead to the proliferation of so-called “micro-units.” Why then are the Chamber and other corporate interest groups committed to doing away with the Specialty Healthcare standard? They want employers that are committed to defeating an organizing campaign to be able to manipulate who is in a bargaining unit to make it harder for workers to organize. The National Labor Relations Act (NLRA) directs the NLRB to allow employees to organize into units that assure employees “the fullest freedom in exercising the rights guaranteed by this Act.” The standard in Specialty Healthcare does just that.

The NLRB’s election rule took effect on April 14, 2015. The rule made modest changes to the NLRB’s election process. The Chamber and other corporate interests immediately charged the NLRB with creating an “ambush” or “quickie” election rule that favors unions. In reality, the rule was aimed at modernizing the election process to include the use of electronic communications and reducing unnecessary litigation by streamlining the hearing process. Again, the courts have upheld the rule where it was challenged. It has been in effect for nearly two years and, while elections are being conducted in a more efficient manner, the union win-rate has remained basically unchanged. Why then are the Chamber and other corporate interest groups committed to rescinding the rule and having Congress codify a mandatory waiting period for a union election? They want employers to have more time to defeat an organizing campaign. During an election process, it is standard practice for workers to be subjected to threats, interrogation, harassment, surveillance, and retaliation for union activity. The results of anti-union campaigns and inadequate protections can be seen in the most recent Union Members Summary from the Bureau of Labor Statistics showing that union membership was down 0.3 percent in 2016 to 6.4 percent of private sector workers. The election rule did not directly address the erosion of collective bargaining, it addresses some of the procedural obstacles that—in addition to employers’ anti-union campaigns and inadequate worker protections—make it hard for workers to form unions.

The NLRB issued its Browning-Ferris decision in 2015, reinstating its joint employer standard and affirming the longstanding common-law definition of a joint-employment relationship. The NLRB held that where two or more employers control—whether directly or indirectly— the terms and conditions of employment they are joint employers. In its decision, the NLRB noted that the modern workplace has a wide variety of employment relationships, such as temp and staffing agencies and subcontracted workers, leading to confusion and difficulty when workers try to form unions and bargain collectively. The NLRB’s joint-employer standard, grounded in well-established common law, simply requires every entity that employs a worker to come to the bargaining table. While the Chamber and other corporate interests try to make the Browning-Ferris joint-employer standard seem controversial, in reality there should be nothing controversial about bringing all parties in the employment relationship to the bargaining table. Why then, are the Chamber and other corporate interests committed to rolling back the standard and having Congress enact legislation that would codify an outdated joint-employer standard? An outdated joint-employer standard that fails to keep pace with modern workplace arrangements allows employers to avoid liability for violating the NLRA (and other worker protection statutes) and frustrates collective bargaining.

The Chamber makes additional recommendations, all of which stack the deck in favor of corporations and against workers organizing. Labor policy reform must address the loss of bargaining power of U.S. workers and the rise of income inequality, not the wish lists of corporate lobbyists.