Members of the House and Senate reintroduced legislation on Thursday that would prevent the formation of “micro units” and guarantee workers the right to secret ballot representation elections.

Representation Fairness Restoration Act

The first bill, the Representation Fairness Restoration Act (H.R. 2347, S. 1166) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision. The Board in Specialty Healthcare determined a petitioned-for unit will be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. If an employer contends that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. Many have argued that this decision has resulted in much smaller “micro” bargaining units that are easier to organize and more difficult for employers to administratively manage.

To remedy this outcome, the proposed Representation Fairness Restoration Act introduced by Rep. Tom Price (R-GA) and Sen. Johnny Isakson (R-GA) would amend the National Labor Relations Act (NLRA) to revise the proper bargaining unit standard. Among other requirements, the bill would compel that the Board determine the appropriate bargaining unit prior to an election. Employees in the unit would be required to share a “community of interest,” as evidenced by the following factors: (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) the consistency of the unit with the employer's organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry.

Two years ago the House of Representatives passed the Workforce Democracy and Fairness Act (H.R. 3094), a bill containing identical language addressing bargaining unit determination, but that legislation was never considered by the Senate.

In a press release, Sen. Isakson said:

I’m proud to reintroduce the Representation Fairness Restoration Act that reinstates the traditional standard for determining appropriate bargaining units. When the NLRB decided to allow micro unions, they significantly tipped the scales in favor of unions and neglected our nation’s long-standing precedents of collective bargaining. This ruling makes it easier for unions to gain access to employees and makes it nearly impossible for employers to manage such fragmentation of their workforce.

Secret Ballot Protection Act

The second bill introduced on June 13, the Secret Ballot Protection Act (H.R. 2346), would amend the NLRA to guarantee the right to secret ballot union representation elections. Introduced by Rep. Phil Roe (R-RN), the legislation would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it. More information on this bill can be found here.

In a press release, Rep. Roe stated:

This legislation sides with every American worker because it protects his or her right to a secret ballot during union elections. This has nothing to do with whether you are pro- or anti-union; this is simply about giving workers the protection and freedom they deserve to make the best decision for themselves and their families without fear of retribution.