On December 15, 2017, the NLRB issued its decision in PCC Structurals rescinding its 2011 Specialty Healthcare decision and reinstating the traditional standard for determining appropriate bargaining units.
Under the traditional standard if an employer believed a union’s petitioned-for bargaining unit (the group of employees the union is attempting to organize) should include additional employees, the employer needed to show the employees share a community-of-interest (i.e. similar working conditions, hours, benefits, supervision, etc.).
Under Specialty Healthcare, however, the Board changed the standard to require an employer show an “overwhelming” community-of-interest between the petitioned-for unit and other employees in their workforce. This new standard made it difficult for employers to prove the petitioned-for unit was inappropriate and therefore easier for unions to gerrymander the workforce into “micro-unions,” effectually disenfranchising employees that oppose unionization. These “micro-unions,” or fractured units, greatly limit an employer’s ability to cross train and meet customer and client demands via flexible staffing as employees could not perform work assigned to another unit. Employees in these micro-unions also suffered from reduced job opportunities, such as promotions and transfers.
Republicans on the NLRB and in Congress have both worked to eliminate the Specialty Healthcare decision. In PCC Structurals, the NLRB abandoned the “overwhelming” community-of-interest standard, clarifying that the traditional standard allows the Board to evaluate the interests of all employees, not just those inside the petitioned-for unit. Along with this decision, the NLRB’s General Counsel issued a memorandum (Memorandum OM 18-05) on December 22, 2017, instructing Regional Offices to use the standard established in PCC Structurals “at all stages of case processing in currently active cases,” effectively prohibiting the application of the Specialty Healthcare decision to any cases currently pending. Finally, previous Congresses have introduced legislation to roll back the Specialty Healthcare decision – the Representation Fairness Restoration Act (H.R. 2629, S. 1217, 115th Congress) and the Workforce Democracy and Fairness Act (H.R. 2776, S. 1350, 115th Congress).
While CDW applauds the progress made on this issue, confusion remains around the application of the PCC Structurals standard. CDW submitted an amicus brief to the NLRB in Boeing requesting additional guidance for employers, unions, and the judicial system on how to determine appropriate bargaining units in future cases and circumstances. Additionally, there is nothing stopping the Biden administration from attempting to reinstate the Specialty Healthcare decision or similar policies. Congress should therefore move to permanently prevent implementation of the Specialty Healthcare standard by enacting legislation that codifies the traditional standard into law. CDW will continue to pursue the issue in court as opportunities arise.
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