Republican legislators have proposed amendments to the National Labor Relations Act (NLRA) that would ensure employees’ right to a secret ballot election to select a union and relax the burden of proof for an employer seeking to expand the union’s petitioned-for voting unit.

One bill, the “Secret Ballot Protection Act,” introduced in the U.S. House of Representatives on June 13, 2013, would make it unlawful for an employer to grant voluntary recognition to a union that was not selected by employees in a National Labor Relations Board-conducted election. (To view this proposed legislation, click here.) The amendment would not apply to collective bargaining relationships that arose from voluntary recognition before enactment of the amendment. Another proposal, entitled “Representation Fairness Restoration Act” (first introduced in the last Congress) would essentially overrule  the Board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 356 NLRB No. 56 (2011), in which the Board increased the burden on employers to broaden the voting unit from that petitioned for by the union. Instead of having to show only that the expanded unit would share a  “community of interest,” the employer  now has to show that expanded grouping shares  an “overwhelming community of interest,” making it extremely difficult for an employer to convince the Board to include the employees sought to be added. This more-difficult-to-prove standard makes it easier for unions to win elections, because it gives them license to target small groups of employees, which are easier to unionize.   

The Representation Fairness Restoration Act would substitute a “sufficient community of interest” standard for determining voting units in Board elections, and identify specific factors the Board must consider in making its decisions.   (To view this proposed legislation, click here.) These include: (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. In applying these factors, the Board would have to avoid the proliferation or fragmentation of bar gaining units, and could not exclude employees from a unit “unless the interests of the group seeking a separate unit are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”

Although the these bills send a strong message to the Board and parties who appear before it, neither is likely to reach the President’s desk, as  Senate approval is considered unlikely even if the House passes one of them.