One of the many controversial pro-labor decisions in the past few years was one called Specialty Healthcare. This National Labor Relations Board (NLRB) decision changed a long-standing rule about determining the composition of collective bargaining units for union certification purposes. Before Specialty Healthcare an “appropriate” bargaining unit was one that represented “all workers in a class or craft.” That has changed.
Under the 2011 Specialty Healthcare decision bargaining units are now recognized by what the NLRB determined have an “overwhelming community of interest” and can be any proposed bargaining unit regardless of how small or fragmented. The employer, who may have an interest in including all employees within a class or craft in their organization, will now have to allow select groups of employees to organize regardless of their group size. Thus, in many cases leaving only union supporters to hold an election with. Other employees in the same job or classification may not be included in the unit for the purposes of determining if a union is wanted or not.
It appears fine on its face. If those employees want to be in a union and the others do not, let them have their small bargaining unit, right? The problem is that this seems to be contrary to Section 9 (c)(5) of the National Labor Relations Act (NLRA). This is yet another example of how the present day NLRB is disregarding old precedent and creating new law despite the old law still being on the books. At the time the NLRB downplayed the decision’s potential ramifications with a formal announcement stating that this was a decision about the appropriateness of healthcare facility non-acute care departments. The NLRB’s press release at the time stated it had not really created new criteria for “determining appropriate bargaining units outside of health care facilities.”
Since this decision, Specialty Healthcare has been used to justify micro-units in general aviation services -allowing a sub-unit of workers to organize rather than including the entire population of workers that service airplanes to vote. A beverage company in California was told it could not also include a separate group of workers that supported the class of employees the union wanted to see in a bargaining unit. T-Mobile also had Specialty Healthcare used against its assertion that its New York City workers included the Burroughs of New York and two counties of Long Island and that a bargaining unit of just Long Island workers was inappropriate. All contrary to the NLRB’s assertion that Specialty Healthcare had a narrow or limited application.
In addition to the above summarized decisions using Specialty Healthcare, the U.S. Chamber of Commerce report (Trouble With the Truth: Specialty Healthcare and the Spread of Micro-Unions) states that since this decision the NLRB has used Specialty Healthcare to decide seven other bargaining unit decisions in a myriad of other industries. The NLRB has shown no consideration since that time to limit its use of Specialty Healthcare to re-define what is an appropriate bargaining unit.
This allows small groups of union sympathetic workers to organize and put a foot firmly in its door for further organizing of part or the entire population of employees.
Attempts are being made by the business community to overturn the Specialty Healthcare decision in both the legislature and the courts. On the legislative side no bill has made it out for the President’s signature. If it did, it is very unlikely the current administration or a new Democratic and pro-labor lead administration would sign off on a law that would negatively impact this new union organizing tool.
On the litigation side some employers have tried to overturn the NLRB Specialty Healthcare decision in federal court. So far five Appeals Courts has sided with the NLRB’s position because Court policy is to give the government agency “wide discretion to determine an appropriate bargaining unit.” (Kindred Nursing Ctrs. E. LLC v National Labor Relations Board 6th Circuit 2013). The Chamber report concludes that only Congress will be able to fix this situation.
Source: Trouble With the Truth: Specialty Healthcare and the Spread of Micro-Unions. US Chamber of Commerce
ASE members that have unions in their organizations are invited to join ASE’s Labor Forum. This group is comprised of labor relations managers and professionals that meet quarterly to discuss concerns and issues of common interest including collective bargaining and contract administration as well as grievance and arbitrations. The next meeting is scheduled for December 12, 2016 at ASE in Livonia. Interested members should contact Michael Burns, EVP at (248) 223-8039 or [email protected] to join this Forum.