On December 15, 2017, the NLRB issued its decision in PCC Structurals rescinding the 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 limited an employer’s ability to cross train and meet customer and client demands via lean, 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.
The NLRB and 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, Congress has introduced legislation to roll back the Specialty Healthcare decision – the Representation Fairness Restoration Act and the Workforce Democracy and Fairness Act.
While CDW applauds the progress made on this issue, a future NLRB or administration could attempt to reinstate the Specialty Healthcare decision. Congress should move to permanently prevent implementation of the Obama-era policy by quickly 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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