With prospects for the misnamed Employee Free Choice Act (EFCA) having fallen to zero in Congress, the National Labor Relations Board (NLRB) has been busy instead issuing rulings expanding the legal prerogatives of labor unions. One that has the business community up in arms concerns “micro-unions,” in which a union designates a bargaining unit smaller than would be considered natural under Board precedent, but within which it thinks it can muster a voting majority. We covered the issue last year, and a ruling this May confirms that the NLRB is headed down this controversial path. I summarize at Cato at Liberty.
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The NLRB has tried micro units for decades. I was a field attorney with the NLRB in Newark in the 60’s when a call from the Executive Secretary’s office to the Regional Director advised him that there would be a petition filed for a unit comprised solely of the automotive department unit at Bamberger’s Paramus, NJ outlet, and to send it to a hearing despite the fact there had been a dismissal of a petition for that unit just months before. The petition landed, I was assigned as Hearing Officer, and the case was submitted to the Board in Washington rather than being decided locally. As predicted the auto unit was found appropriate. There were a rash of similar decisions around that time splintering department stores into several department stores, sometimes between selling and non selling employees in the same stores. Sometimes the rationale for the decision was that the smaller unit encompassed a higher skill, such as cutters in the garment industry, or butchers in meat departments, all to disguise the fact that they”really weren’t based on extent of organization,” which of course they were.
It all boils down to the fact that the NLRB is and was the quintessential political animal, and pays as much attention to the principal of stare decisis as it does to the plain language of the statute.
“Departmental units” not department stores. Sorry.