As many of you may know, the National Labor Relations Board’s (“NLRB”) decision in the Specialty Healthcare case overruled 20 years of practice regarding how it determines the “appropriate unit.” Although it was hoped that this change impacted only non-acute health care facilities, it is now clear that the NLRB will apply the Specialty Healthcare decision across the board.
What is an appropriate bargaining unit under Specialty Healthcare?
In essence, it’s any group of employees who are readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors. The Board will make this determination even if the employer shows that the proposed unit could be placed in a larger unit which would also be appropriate or even more appropriate. The employer must demonstrate that the employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit. This is a very difficult burden. Not surprisingly, Member Hayes’ dissent noted that the Board’s new test encourages unions to organize the smallest units possible, resulting in a fragmentation of the workforce and he recognized that the heightened burden on employers makes it “virtually impossible” for an employer to prove that excluded employees should be included in a petitioned-for unit.
What is the impact of Specialty Healthcare?
Since Specialty Healthcare, the Board has consistently turned aside employer’s challenges to bargaining units, even where only 1/3 of similarly situated employees sought union representation. Two cases come to mind. In one, a group of 34 “line service” employees were allowed to form their own bargaining unit despite sharing a community of interest with 76 other employees the now organized employees work with. In another, 31 of 109 employees working in a rental car facility were allowed to organize over the employer’s objection that all 109 employees should be considered the bargaining unit. Again, member Hayes dissented, noting that Board review of the scope of the unit has now been rendered largely irrelevant. It is the union’s choice, and the likelihood is that most unions will choose to organize incrementally, petitioning for units of the smallest scale possible.
What does this mean for employers?
Ultimately, this will mean that unions will be encouraged to organize smaller micro units, where they often have a greater chance of gaining majority support. Employers will likely face a workforce comprised of multiple bargaining units (with multiple collective bargaining agreements) and will also be presented with a greater risk of experiencing labor unrest.