Another day, another NLRB pro-worker ruling bites the dust via Trump-named majority
Philip Miscimarra | YouTube screenshot

WASHINGTON—Another day, and another pro-worker National Labor Relations Board ruling bites the dust, thanks to the three-Republican majority now at the board, courtesy of GOP President Donald Trump.

This time, late in the afternoon on Dec. 15, it was the former board’s 2011 Specialty Healthcare decision, which let unions petition to organize parts of companies as “appropriate units” for bargaining, with a “community of purpose,” rather than the whole firm all at once.

If the bosses wanted to add more workers – a common tactic to frustrate union organizing drives – they had to prove the “new” workers had “an overwhelming community of interest” with the workers the union sought to organize. Now they won’t have to prove that, anymore.

Ever since Specialty Healthcare, Congress’ ruling Republicans, political puppets of corporate interests, had been screaming in rage, snidely referring to “micro-unions,” and scheming to overturn it legislatively. They failed in the halls of the Capitol, but succeeded, 3-2, at the NLRB.

The day before, the board majority had overturned a prior NLRB ruling saying that both corporate headquarters – think McDonald’s HQ – and their local franchise-holders – your local McDonald’s – were jointly responsible for obeying or breaking labor law.

That decision left workers to bargain with the local franchise holder, who has so little power over wages, working conditions, uniforms or anything else that bargaining with the local owner without having headquarters at the table, too, was meaningless.

This latest ruling may not be the end of it. The Trump-named board majority is rushing out decisions before the end of the year, when its chair, Philip Miscimarra, departs – leaving the NLRB with a 2-2 partisan tie.

Specialty Healthcare bit the dust in a case involving Machinists Local Lodge W24 and PCC Structurals of Portland, Clackamas and Milwaukie, Ore., when the board tossed out the prior ruling. The Machinists won a vote among only the rework welders and rework specialists in Portland, 54-38, earlier this year. But PCC challenged the vote, saying the “appropriate” bargaining unit should be all 2,565 PCC workers at all three sites. The board majority agreed.

The board’s GOP majority said the 1947 Taft-Hartley Act – GOP-passed legislation which emasculated the original National Labor Relations Act – said “the extent to which the employees have organized shall not be controlling” about what’s an “appropriate” bargaining unit. That opened the door to bosses to add their favorite workers to bargaining units unions sought.

And that goes case by case, the majority added. It decreed: “Specialty Healthcare discounts, or eliminates altogether, any assessment of whether shared interests among employees within the bargaining unit are sufficiently distinct from those of the excluded employees to warrant a finding that the petitioned-for smaller bargaining unit” — the GOP’s “micro-union” — “is appropriate.”

“We believe Specialty Healthcare makes the extent of union organizing controlling” the factors which describe a bargaining unit, the majority said.

And then, attempting to mount a moral high horse, the majority declared that “Henceforth, the board’s determination of unit ‘appropriateness’ will consider the rights of those employees excluded from the proposed bargaining unit and the rights of those included in that unit, regardless of whether there are overwhelming interests between the two groups.”

“In Specialty Healthcare,” explained analyst Marni von Wilpert of the labor-backed Economic Policy Institute think tank, “the board established that once an appropriate unit of employees is identified based on the employees’ ‘community of interest,’ an employer can only petition to add more employees to the unit if the employer can show the additional employees share an ‘overwhelming community of interest’ with the workers who are already in the bargaining unit.

“This standard is important to prevent employers from attempting to manipulate or gerrymander the bargaining units in order to thwart their employees’ union elections.

“Why then were the Chamber of Commerce and other corporate interest groups committed to doing away with the Specialty Healthcare standard? They simply want to make it easier for employers to defeat an organizing campaign, by manipulating who is in a bargaining unit. By overturning this rule, the Trump administration has once again shown that it wants to make it harder for workers to organize and join unions.”

Former NLRB Chairman Mark Gaston Pearce, writing for the dissenters, said the GOP majority went so far in smashing the prior ruling that it virtually violates the National Labor Relations Act’s mandate that U.S. policy is to encourage and protect workers who join together to better themselves, by unions or self-protective action.

“A key aspect of the right to self-organization is the right to choose whom to include and whom to exclude,” Pearce said. Saying any decision on who should be in an organizing drive must include the excluded workers blows a hole in the NLRA, Pearce said.



Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.