Restoring the NLRB to its Rightful Role of Umpire

AlexanderThe National Labor Relations Board (NLRB) needs to be restored to its rightful role of umpire instead of advocate. To do that, I have introduced the NLRB Reform Act with Senate Republican Leader Mitch McConnell. Our bill will return the board to the role it was intended for when created 79 years ago—to act impartially and resolve labor disputes. Over time, it has become an advocate for one interest group or the other, whipsawing back and forth with each new administration and taking employers on a wild ride.

The recent efforts by both the board and the NLRB’s general counsel to redefine the joint employer standard serve as a troubling example of how the board’s actions could have wide-ranging, negative consequences.

This determination creates confusion for many workplaces, including the hotel and lodging sector’s 1.8 million employees—the drivers of an industry that generates $155.5 billion in sales. It also ignores decades of precedent and plain old common sense in what can only be an effort to help labor unions add more members.

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This is no way to maintain a national labor law policy. So, we recently introduced legislation to restore stability to American workplaces by fixing the three most significant problems with the board today. 

1. The biggest issue with the NLRB is its partisan advocacy. Under today’s NLRB, workers are losing their right to privacy. The board is embarking on a regulatory effort to expand requirements that employers give unions their employees’ names and addresses, a practice it wants to extend to more personal information, including phone numbers, email addresses, and work location, shift, and job classifications.

The board also suddenly changed the law so any group of employees with an overwhelming community of interest could become a bargaining unit—and therefore, a union. How has this worked in the real world? The board just approved a bargaining unit for cosmetic and fragrance employees in a Macy’s—not the shoe salespeople, not the women’s fashion employees—just cosmetic and fragrance. Imagine if every department of Macy’s decided to form a union. The employer would have dozens of groups to negotiate with, who would all be fighting each other over who got the better raises and break rooms in terms of employment.

Our legislation would end partisanship at the board by requiring a six-member board of three Republicans and three Democrats. Like the Federal Election Commission, a majority of four will require both sides to find middle ground.

2. The NLRB has a freewheeling advocate for its general counsel, stretching labor law to its limits and sometimes beyond them. For example, in 2011, the general counsel moved to stop Boeing from building new airplanes at a nonunion plant in South Carolina, jeopardizing a $1 billion factory and hundreds of jobs. Even worse, he tried to make the case that a unionized American company cannot expand its operations into one of the 24 states with right-to-work laws, which protect a worker’s right to join or not to join a union. The general counsel eventually withdrew this complaint, but if it had set a precedent, jobs would have fled overseas as manufacturers looked to find a competitive environment in which to make and sell their goods around the world.

To rein in the general counsel, our bill would allow businesses and unions to challenge complaints filed by the general counsel by taking their case to a federal district court. They also would have greater transparency about the basis and legal reasoning for the charges brought by the general counsel. 

3. The NLRB has been slow to resolve disputes. Last year, 109 cases—30 percent of the board’s caseload—were pending for more than a year. One case, involving the question of whether an employer has to allow union organizers access to private property, has been pending at the board for more than seven years. 

Our legislation would encourage timely decisions by allowing either party in a case before the board to appeal to a federal court of appeals for a de novo, or fresh, review if the board fails to reach a decision in one year. Funding for the entire NLRB would be reduced by 20 percent if the board is not able to decide 90 percent of its cases within one year over the first two-year period following reform.

Our legislation offers these solutions without taking away any rights or remedies from an employee, business, or union. The NLRB’s decisions affect millions of private-sector workers, and the legislation will restore the stability American workplaces need.

Lamar Alexander is the U.S. senator for Tennessee. He introduced the NLRB Reform Act in September.