Sen. Graham slams NLRB as the ‘Grim Reaper of job creation’

Sen. Lindsey Graham (R-S.C.) will introduce legislation to stop a controversial National Labor Relations Board (NLRB) ruling that could allow unions to form smaller bargaining units.

Graham, appearing Wednesday on a conference call organized by business groups, said he would introduce an NLRB amendment to the Labor, Health and Human Services appropriations bill when the Senate Appropriations Committee marks it up on Thursday. The measure would ban the use of federal funds to implement an August 2011 NLRB ruling, known as Specialty Healthcare, that critics argue allows for the creation of “micro-unions.”

Graham said he wants to block the NLRB ruling because it has set a precedent where subsets of workers at a worksite can form a union.

“The reason I’m involved is because businesspeople from over the country have indicated to me that this ruling is basically creating chaos in the private sector,” Graham said. “The NLRB is becoming the Grim Reaper of job creation.”

{mosads}The South Carolina senator cited an NLRB complaint against Boeing for allegedly punishing union workers, which has since been dismissed, and an NLRB rule that would speed up union elections, which has been blocked by federal courts. 

“You expect an agency not to become a political advocacy group, and this ruling is just creating havoc in the private sector when the private sector is not doing fine,” Graham said.

He said he hopes his amendment gets “bipartisan support.”

Legislation passed in the House last year would void the ruling, but that bill has not moved in the Senate. Sen. Johnny Isakson (R-Ga.) has introduced similar legislation.

Business groups have challenged the Specialty Healthcare ruling in court, but said they need action now to stop the NLRB ruling from taking hold. 

“We are pursuing every single option that’s possible to us right now,” said Katherine Lugar, executive vice president of public affairs for the Retail Industry Leaders Association. “The appropriations process is really our only option right now to prevent the National Labor Relations Board from spreading this decision to other industries, from killing jobs.”

Business groups have lobbied for action against the NLRB ruling in the Senate Appropriations Committee.

In the August 2011 ruling, the NLRB said it should only apply to specific healthcare facilities such as nursing homes. The labor board said 53 certified nursing assistants could form a bargaining unit for a union and exclude other types of employees at the nursing home.

Critics conceded that the NLRB said the ruling should only apply to certain industries, but argued it is still being used elsewhere.

“They have taken this specialty rule that they would have us believe is limited to this specific healthcare setting and they have applied it all over the place,” said Jason Schwartz, a partner at Gibson Dunn & Crutcher.

“It has really run amok, frankly,” he said.

Schwartz cited the example of the women’s shoe department at a Bergdorf Goodman store forming a union and said the NLRB regional director cited the August 2011 ruling in his decision.

A NLRB spokeswoman said the labor board has denied requests for smaller bargaining units since the August 2011 ruling, citing two recent board decisions regarding workers at Odwalla and Home Depot.

“The idea that this decision has led to a proliferation of small, competing units at workplaces is a claim without any substance. In fact, the average size of a unit in NLRB elections has long been about 25 employees, and since the Specialty Healthcare decision, that average has actually increased slightly,” said Nancy Cleeland, the NLRB spokeswoman. 

“Using the Specialty ruling, the board has rejected requests for small units at some workplaces, saying the workplace would be fractured unless the unit was enlarged. The decision by a regional director to allow shoe salespersons to organize at an upscale department store, which has been cited by critics, relied on longstanding board policy to determine that unit is appropriate,” Cleeland said.

The NLRB will still have its Republican critics in Congress. Graham said the ruling is not good for jobs. 

“It does a lot of damage to job creation. It puts businesses in an untenable position where you can grab up a handful of employees in a business, unionize them and hold everybody else hostage,” Graham said.