Legislation introduced by House Committee on Education and the Workforce Chairman John Kline (R-MN) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the Board from pursuing its proposed changes to representation election procedures. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) seeks to return to the long-standing approach in assessing which employees belong in a proposed bargaining unit, and would establish a timeline and process for holding a hearing regarding any pre-election disputes and deciding the appropriate bargaining unit.

First, the measure would amend the National Labor Relations Act by requiring the Board to take into consideration eight separate factors when making a unit determination: (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) consistency of the unit with the employer’s organizational structure; (7) similarity of job functions and work; and (8) bargaining history in the particular unit and the industry. Likely in reaction to the Specialty Healthcare decision – in which the Board made it more difficult for employers to successfully challenge the appropriateness of a bargaining unit – the bill includes the following provision:

To avoid the proliferation or fragmentation of bargaining units, 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. Whether additional employees should be included in a proposed unit shall be based on whether such additional employees and proposed unit members share a sufficient community of interest, with the sole exception of proposed accretions to an existing unit, in which the inclusion of additional employees shall be based on whether such additional employees and existing unit members share an overwhelming community of interest and the additional employees have little or no separate identity.

This amendment is designed to prevent the formation of so-called “micro” bargaining units that are easier to organize.

In response to the Board’s proposal to significantly shorten the time before an election occurs, the bill also would require that a hearing on any pre-election dispute – including those over the appropriateness of the bargaining unit itself – must be conducted within 14 days after petition for representation has been filed. The measure also would require that once a final bargaining unit has been determined, the employer would have at least seven days to provide the union with a list of eligible voters, which would include their names and one form of contact information of the employee’s choosing.

In a press release, Rep. Kline claimed that as a result of recent Board actions:

Employers will be forced to dedicate their limited resources to managing labor relations instead of expanding operations and hiring new workers. To make matters worse, the board’s agenda will create unnecessary strife within the workplace, pitting worker against coworker and opening the door to increased union pressure. The Workforce Democracy and Fairness Act is a responsible proposal that will protect employers’ free speech and workers’ free choice.

A full committee hearing on this bill is scheduled for Wednesday, October 12 at 10:00 a.m.