During a hearing conducted by the House Subcommittee on Health, Employment, Labor, and Pensions, witnesses and lawmakers debated the merits of the Representation Fairness Restoration Act (H.R. 2347, S. 1166) and the Secret Ballot Protection Act (H.R. 2346), both of which were introduced earlier this month. The Representation Fairness Restoration Act would undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, while the Secret Ballot Protection Act would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections.

Subcommittee chairman Phil Roe (R-TN) claimed that rolling back the Specialty Healthcare decision would “preserve unity and harmony” in the workplace, while requiring that representation elections be held by secret ballot would eliminate a potential “chilling effect” that card check measures or regulatory changes would have on workers.

Ranking member Robert Andrews (D-NJ), however, claimed that the main problem with labor law today is that the NLRB cannot operate without a quorum, and chided the Senate for failing to bring the five current Board candidates up for a vote. He also challenged the need for these labor-related bills, saying that they offered “a solution in search of a problem.”

Jerry M. Hunter, the first hearing witness and former NLRB General Counsel, testified that the Specialty Healthcare decision will “wreak havoc on employers,” as employers are faced with the possibility of multiple micro bargaining units that make it impossible for them to carry out decisions regarding transfers and other terms and conditions of employment, as well as increase operational costs. Hunter noted that neither party in this case requested that the Board reconsider the viability of the bargaining unit determination criteria set forth in the Park Manor case, which had been in place for decades. Hunter deemed the Board’s actions in Specialty Healthcare as “one of the most significant reversals in the history of an agency.”

Eric Oppenheim, Chief Operating Officer of Republic Foods, Inc., testifying on behalf of the Society for Human Resource Management, echoed these concerns. He said that the Specialty Healthcare decision does not offer a balanced approach to bargaining unit determination, and “will needlessly harm employee morale.” Oppenheim explained that this decision could result in an employer having to manage several bargaining units and unions at a single worksite. This workplace fracturing will hinder the employer’s ability to cross-train employees, he testified, and will force an employer to bargain with multiple units resulting in different wages, hours, and working conditions involving employees at a single location.

Another former NLRB General Counsel, Fred Feinstein, expressed the opposite view, stating that the proposed bills would “weaken successful labor relations,” and urged Congress to confirm the Board nominees.

Similarly, Rep. Andrews claimed that a proliferation of micro unions has not come to pass, citing NLRB statistics showing that the median size of bargaining units have increased, not decreased, since the issuance of Specialty Healthcare.

Glenn M. Taubman, Staff Attorney with the National Right to Work Legal Defense Foundation, spoke in support of the Secret Ballot Protection Act, claiming that employees need the ability to maintain privacy in voting to either certify or decertify a union. He claimed that “far too often the NLRB acts as an incumbent protection squad.” Taubman claimed the use of card check and neutrality agreements “destroy employee rights,” and that laws are needed to block their abuse. He also spoke against union blocking charges, which he claimed are used by unions to prevent decertification elections.

Reps. Andrews and Raul Grijalva (D-AZ), however, challenged this position, claiming that there is no proof that employers are pressured to sign neutrality agreements. During the next U.S. Supreme Court term, the Court will consider a case, Unite Here Local 355 v. Mulhall, dealing with neutrality agreements.

A list of the panelists and links to their testimony and an archived webcast of the hearing can be found here.