During a week that brought several notable decisions, the National Labor Relations Board issued a ruling on Friday, December 15, 2017, overturning its controversial 2011 Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”) decision, which held that in order for employees to be included in a collective bargaining unit, employers had to prove the employees shared an “overwhelming community of interest” with one another. The unions argued that the “overwhelming community of interest” burden was all but impossible to meet and effectively allowed unions to create “micro-units” of any number, group, or sub-group of employees the unions saw fit. This in turn meant that an employer could be faced with negotiating collective bargaining agreements with multiple groups of employees who often shared the same schedule, workplace, and general terms and conditions of employment, but nonetheless were represented by different locals or divisions of the same or multiple unions. In one particularly glaring example, the Board approved a union’s request for separate bargaining units in each of nine different graduate student departments at Yale University despite the fact that the union already represented existing, university-wide bargaining units.
On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.
Published in Law360
The National Labor Relations Board has an 80-plus year history of administering federal labor law and regulating labor-management relations in the United States. Formed in 1935 by the passage of the original Wagner Act, the board’s primary obligations are to oversee the formation of collective bargaining units, to investigate and prosecute unfair labor practices, and to establish legal precedent through regulations and binding case precedents. In carrying out its responsibilities, the board is generally expected to act as a neutral arbiter of facts and cases.
On February 14th 2017, Hunton labor partner Kurt Larkin will present testimony at the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions hearing on “Restoring Balance and Fairness to the National Labor Relations Board.” Kurt will discuss a variety of NLRB issues, including joint employer standards, ambush elections and micro unions. The hearing will take place at 10:00am EST and can be viewed live here.
By now, most in the employer community are all too familiar with the NLRB’s controversial “micro-bargaining unit” standard announced in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In that case, the Board announced a standard that in almost all instances results in approval of a union-requested bargaining unit, unless the employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other part of its workforce. This standard has proven difficult, if not impossible, for employers to meet, and the Board has pushed the standard into retail, manufacturing, and even wineries. Now, the Board has introduced its micro-unit rule in higher education, and the results could be disastrous for universities across the nation. Continue Reading NLRB Pushing Specialty Healthcare Standard to Unprecedented Lengths