The latest National Labor Relations Board (NLRB) decision reversing actions by the Obama-era Board hands employers a win against an organizing tactic that gave unions the upper hand in determining what constitutes an appropriate bargaining unit. As was the case with other mid-December decisions, the Board turned the old standard into the new standard.
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On December 15, the Board issued a 3-2 party-line decision reversing the 2011 Specialty Healthcare decision, which opened the door for unions seeking to organize “microunits.” The decision reining in microunit unionization efforts was the latest in a flurry of NLRB activity undertaken just before Republican Philip Miscimarra’s term expired on December 16. Other recent decisions struck a blow against the “quickie” union election rule and reversed a decision affecting employee handbooks and another related to the “reasonableness” settlement standard in single-employer claims.
With Miscimarra’s departure, the Board now has two Republicans—Marvin E. Kaplan and William J. Emanuel—and two Democrats, Mark Gaston Pearce and Lauren McFerran.
Old Standard Now New
The December 15 decision involving PCC Structurals, Inc., reinstated the old community-of-interest standard for determining an appropriate bargaining unit in union representation cases. It’s up to the NLRB to decide whether a group of employees a union seeks to represent constitutes an “appropriate” collective bargaining unit. The Specialty Healthcare ruling was seen as a win for unions since it made it easier for them to target a small number of employees likely to look favorably on unionization.
The new decision is “a big win for employers in the organizing process,” according to Brian Garrison, an attorney with Faegre Baker Daniels LLP in Indianapolis and an editor of Indiana Employment Law Letter. Specialty Healthcare gave controlling weight to what a union determined was an appropriate bargaining unit, and now that changes back to the old standard, which means that all workers who share a “community of interest” should be included in the bargaining unit.
Even under the new standard, which is really the old standard, Garrison said a union may be able to organize a microunit, but the latest Board decision makes that more difficult.
Garrison said employers seeking to avoid unionization should “keep their guard up” even though organization of microunits is now less likely. He also advises employers to train supervisors on positive employer-employee relations and to structure their operations so that the broader group of employees shares a community of interest.
Unions favored the standard allowing for microunits because it was seen as a way to win more union elections. Even though targeting a small group of employees enthusiastic about union representation was seen as a way to gain more union victories, it “didn’t move the needle much,” Garrison said. He said he expects unions to respond to the new NLRB decision “by broadening their organizing efforts.”
Martin J. Saunders, an attorney with Steptoe & Johnson PLLC and frequent contributor to West Virginia Employment Law Letter, said the Board’s latest decision is consistent with the historical purpose of the National Labor Relations Act. He said one main reason the 1935 law was passed was to provide industrial peace by preventing numerous groups of workers from striking regularly.
By having broad—often plantwide—bargaining units, employers avoided problems associated with having multiple unions. With a number of unions involved at one site, an employer could face almost constant contract negotiations and the threat of a strike by one union that could trigger other unions at the plant to walk out, too, Saunders said. Having broader units is more efficient and more likely to promote industrial peace.
Saunders said the reversal of Specialty Healthcare is to some extent a blow to unions, which have become a “declining force” in recent decades. The Board’s latest action prevents unions from being able to “gerrymander” an employer by picking off the “low-hanging fruit” in a small unit.
Saunders said the new decision doesn’t change any advice he has for employers seeking to avoid unionization. They need to be in tune to the possibility of unionization and how to eliminate the perceived need for union representation. He also advised ensuring that workers the employer considers supervisors perform such duties as hiring, firing, promoting, and adjusting grievances so the union can’t claim that they should be eligible for inclusion in a bargaining unit.