December 18, 2017

NLRB Ends Unionizing of Micro-Units

In the final days of 2017, the National Labor Relations Board (NLRB) nixed yet another Obama-Era decision, overruling a highly controversial decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011).

When filing a petition with the NLRB, a union must identify a legally appropriate group of employees (i.e., the “bargaining unit”) it seeks to organize.  Specialty Healthcare had made it easy for unions to identify extremely discrete bargaining units—termed “micro-units.”  Under Specialty Healthcare, an employer fighting a proposed bargaining “micro-unit” had to prove that any excluded workers shared “an overwhelming community of interest” with those included in the proposed unit.  The effect of this decision was to make it substantially more difficult for an employer to include other employees in a proposed bargaining unit, and to make it substantially easier for unions to organize discrete groups (typically of pro-union employees) by allowing them to narrowly organize.

In Friday’s decision, the NLRB granted review regarding a 102-person collective bargaining unit.  A regional director of the agency had approved the “micro-unit” that went on to vote for a union, but employer PCC Structurals, Inc., argued the group was far too small to merit collective bargaining status. 

The NLRB agreed.  In reversing Specialty Healthcare, the NLRB decided that employers should no longer be forced to prove the “overwhelming community of interests.”  Instead, the NLRB is returning to its prior approach, which was to examine whether petitioned-for employees share a community of interest “sufficiently distinct” from excluded employees to warrant their own unit.

This is a win for companies nationwide.  Employers should welcome the Board’s reversal of Specialty Healthcare, the return to established precedent, and a more reasonable (and less disruptive) standard for determining appropriate bargaining units.