Democrats on the NLRB and in Congress are attempting to disenfranchise workers of their right to vote on union representation.
In December 2022, the NLRB issued its decision in American Steel Construction, reinstating the Obama-era Specialty Healthcare standard, which radically changed how the Board determines the appropriate composition of bargaining units, or the group of employees the union is attempting to organize. Additionally, on February 28, 2023, Congressional Democrats reintroduced the Protecting the Right to Organize (PRO) Act (H.R. 20, S. 567), which would codify similar policy into law. The same bill passed the House in March 2021.
Previously, if an employer believed a union’s petitioned-for bargaining unit should include additional employees, the employer needed to show the employees shared a community-of-interest (i.e., similar working conditions, hours, benefits, supervision). Under Specialty Healthcare, however, an employer was required to show an “overwhelming” community-of-interest between the petitioned-for unit and the other employees.
The Specialty Healthcare 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,” or smaller-than-traditional bargaining units, effectively allowing union organizers to disenfranchise employees that did not support unionization. Micro-unions 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 suffer from reduced job opportunities, such as promotions and transfers.
Republicans on the NLRB and in Congress worked to eliminate the Specialty Healthcare decision. In 2017, the NLRB issued its decision in PCC Structurals, which rescinded Specialty Healthcare and reinstated the traditional standard by abandoning the “overwhelming” community-of-interest burden. The PCC Structurals decision clarified 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 Memorandum OM 18-05 in December 2017, which instructed Regional Offices to use the standard established in PCC Structurals “at all stages of case processing in currently active cases,” effectively prohibiting application of Specialty Healthcare. Additionally, previous Congresses introduced legislation to roll back the Specialty Healthcare decision and codify the traditional standard into law – 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).
The Biden administration and Democrats in Congress are now pushing to reinstate the Specialty Healthcare decision. CDW filed an amicus brief with the Board in American Steel Construction, but the NLRB moved forward with this misguided policy regardless of the consequences on workers’ rights.
Congress should move to permanently prevent implementation of the Specialty Healthcare standard by enacting legislation that codifies the traditional standard into law. Additionally, CDW will continue to pursue the issue in court as opportunities arise
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