The NLRB’s Regional Director recently approved a bargaining unit consisting of only warehouse workers (the unit sought by the union) and rejecting the employer’s contention that the unit should include the production employees in the plant as well as the production employees working in the employer’s plant across the street.
This bifurcation of the workers is permissible because of a case called Specialty Healthcare. That case is arguably the most significant decision issued by the Obama NLRB because it virtually guarantees that whatever ready-made bargaining unit the union wants to organize the union will be allowed to organize. If the group of employees sought by the union is identifiable, then the only way the employer can prove that a larger unit was appropriate is to establish the employees it seeks to add shared an “overwhelming community of interest” with the group of employees handpicked by the union. The word “overwhelming” has allowed the NLRB to deny most every employer’s request for a larger bargaining unit. (Larger bargaining units are more difficult for unions or organize, i.e. it is easier for unions to convince 3 out of 5 employees to vote for a union than 30 out of 50 or 300 out of 500).
NLRB Chairman Miscimarra (who remains the lone pro-business Board Member and thus in the minority) issued a dissent signaling his desire to overturn Specialty Healthcare when the Board is at full strength with a pro-business majority. But, Specialty Healthcare may go away sooner. Senator Johnny Isakson (R-Ga) recently introduced the “Representation Fairness Restoration Act” that would insert language directly into the National Labor Relations Act that states, “fragmentation of the bargaining units” is to be disfavored. Representative Francis Rooney (R-Fla) also introduced a companion bill in the House. Between Miscimarra, Isakson, and Rooney, it appears that Specialty Healthcare’s days are numbered.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com