Warehouse Worker Protection Act would harm employees, employers

OPINION:

Legislation introduced last Thursday in Congress, the Warehouse Worker Protection Act, contains misguided policy ideas that will ultimately harm workers. It would pave a pathway for unions to circumvent representation elections, thereby silencing workers’ voices through efforts that will ultimately stifle their right to vote. In addition, it would shroud employers with a presumption of guilt rather than innocence when it comes to accusations of unfair labor practices, no matter how erroneous.

As a policy, the Warehouse Worker Protection Act, or WWPA, represents the latest attempt to give unions an upper hand in the workplace and discard the need for workplace democracy. The purported intent of the legislation — to reduce workplace injury and worker exhaustion — is laudable. But as in all things, the devil is in the details.

The WWPA creates an unfair labor practice prohibiting employers from imposing unfair productivity quotas. Conveniently, the legislation is unclear as to what constitutes an unfair quota, merely defining it as one that “significantly discourages, or prevents, or is intended to significantly discourage or prevent, an employee” from exercising their right to organize under Section 7 of the National Labor Relations Act.

The ruse is that the National Labor Relations Board, under Chairwoman Lauren McFerran’s Democratic majority, has granted employer policies interfering with union activity a conveniently broad definition. Under board precedent, even employee handbooks mandating basic civility to colleagues may constitute an unfair labor practice if it has a “reasonable tendency,” from the point of the employee, to chill the exercise of their Section 7 rights.

Jennifer Abruzzo, the NLRB’s general counsel, has even had her office file a brief urging the board to define individual activity and worker complaints as encompassing protected concerted activity.

Ms. McFerran’s board has defined unfair labor practices as including facially neutral employer policies that never intend to interfere with union activity. Combined with the NLRB’s decision requiring union recognition if an unfair labor practice is filed before an election, the game is set for automatic union recognition without needing democratic elections, silencing workers’ voices.

The WWPA also turns the burden of persuasion on its head. By creating a presumption that an employer has committed an unfair labor practice if a workplace quota is imposed within 90 days after an employee exercises Section 7 rights, the bill renders an employer guilty until proven innocent.

Quotas are an unavoidable feature of the workplace and can be useful productivity metrics. The WWPA’s most irredeemable flaw is to impose a default view of work quotas as a means of worker subjugation.

To serve unions, the bill creates a monster of a bureaucracy — a Fairness and Transparency Office at the Department of Labor. Employers must retain contemporaneous records documenting imposed quotas and maintain those records for the duration of each covered employee’s employment. With the WWPA applying to nearly all warehouse distribution centers, the administrative burdens document retention mandates would impose on small businesses are incalculable.

The director of the Fairness and Transparency Office is also empowered to create an Advisory Committee and Quota Task Force, with union representatives given primacy in membership. The WWPA exempts the Advisory Committee from basic transparency requirements and grants labor unions access to a worksite — unionized or otherwise — on the anonymous request of even one employee.

If the language seems familiar, it is because it has appeared time and again as the Biden administration and its congressional allies seek to utilize a “whole of government” approach to union favoritism. The recent Davis-Bacon rule embodied nearly identical language on record-keeping retention, which greatly increased onerous prevailing wage requirements.

Granting unions special access to worksites was embodied first in administration policy permitting “labor advisors” influence over federal procurement. The policy reared its head again in a recently promulgated final rule from the Occupational Safety and Health Administration granting unions and other third parties access to worksites.

The special interest provisions in the WWPA would be just as problematic were they meant to grant big business special favors and access. Granting either employers or unions favoritism in industrial relations is a recipe for disaster. The Warehouse Worker Protection Act should be defeated on its own terms for silencing workers’ voices by circumventing basic principles of due process and democracy.

• Matthew F. Mimnaugh, former chief counsel to Commissioner Keith E. Sonderling of the Equal Employment Opportunity Commission, previously served as labor counsel to Republican Sens. Richard Burr of North Carolina and William Cassidy of Louisiana, of the Senate Committee on Health, Education, Labor and Pensions.