Sen. Lindsey Graham (R-S.C.) joined a Gibson, Dunn & Crutcher lawyer and representatives of business groups Wednesday to announce a plan to keep the National Labor Relations Board from implementing a decision on collective bargaining.
Speaking on a conference call with Gibson Dunn partner Jason Schwartz and officials with the Retail Industry Leaders Association, the International Franchise Association and the National Restaurant Association, Graham said he is looking to use the appropriations process to ban NLRB-backed "micro-unions," which can participate in collective bargaining with as few as two employees. The senator said he will seek to include a prohibition on NLRB spending related to micro-unions in a fiscal 2013 Senate Labor, Health and Human Services and Education appropriations bill that the Senate Appropriations Committee is scheduled to consider on Thursday.
Graham said the NLRB decision appears to be a "payback to unions," hurting businesses. Since the NLRB in August 2011 allowed a group of certified nursing assistants to form a bargaining unit that didn’t include nonprofessional employees, micro-unions have formed in a department store, an ice cream plant and a car rental outlet, according to participants in the conference call.
"NLRB is becoming the grim reaper of job creation," he said. "This organization seems to be hell-bent on making it difficult to create jobs in America."
Cases challenging the application of the decision still are working their way through the courts and measures to reverse it are stalled in the Senate, where Democrats hold the majority. The Republican-controlled House voted in November mostly along party lines to approve a bill to overturn the decision, but the Senate has yet to consider it or a similar measure introduced by Sen. Johnny Isakson (R-Ga.)
The AFL-CIO and the Obama administration have opposed legislation that would reverse the decision. The White House in November released a statement that said the House bill "attacks the freedom of individuals to choose the co-workers with whom they wish to seek representation."
"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," said Katherine Lugar, executive vice public of public affairs for the Retail Industry Leaders Association. Other representatives of the business groups on the conference call included Jay Perron, vice president of government relations and public policy for the International Franchise Association and Angelo Amador, vice president of labor and workforce policy for the National Restaurant Association.
The conference call came a day after their organizations, the U.S. Chamber of Commerce and other business groups wrote to Senate Appropriations Committee members, urging them to "send a strong message this week" by overturning the NLRB decision. They sent the letter to Senate Appropriations Committee Chairman Daniel Inouye (D-Hawaii) and his Republican counterpart on the panel, Sen. Thad Cochran of Mississippi, as well as Sen. Tom Harkin (D-Iowa), chairman of the Senate Labor, Health and Human Services and Education Appropriations subcommittee, and that panel’s ranking Republican, Sen. Richard Shelby of Alabama.
"The micro-unions decision overturns more than 50 years of precedent and would create division in the workplace, increase operational complexities and costs, while also depriving employees of the flexibility and cross-training opportunities they seek," they wrote.