Friday, November 11, 2016

Specialty Healthcare Five Years Later – Despite Assurances to the Contrary, Micro-Union Organizing Proliferates

By Andrew J. Cleves*

Five years ago, the National Labor Relations Board (“NLRB”) altered the union organizing landscape by changing its analysis of union-proposed bargaining units. In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”), the NLRB established a new standard for determining whether unions may propose a unit comprised of only a small group of employees (a “micro-unit”) over an employer’s objection.

Under the Specialty Healthcare standard, a union-proposed bargaining unit is presumptively appropriate and employers must prove that the excluded employees share an “overwhelming community of interest” with the employees included in the union-proposed unit.

Justifiably, the NLRB’s Specialty Healthcare decision concerned employers. It allows unions to cherry pick “micro” bargaining units comprised almost exclusively of union-supportive employees. This offers unions a strategic foothold even in businesses where a majority of workers do not support unionization. Furthermore, the NLRB’s new requirement for an “overwhelming community of interest” makes it more difficult for employers to effectively challenge a union-proposed unit.

Anticipating criticism, the NLRB went to great lengths to assure employers of Specialty Healthcare’s limited change and impact when it announced the decision. The NLRB claimed that it merely “clarified” the criteria used in instances “where a party argues that a proposed bargaining unit is inappropriate.” The NLRB also insisted the Specialty Healthcare decision “did not create new criteria for determining appropriate bargaining units outside of healthcare facilities.”

However, those assurances have rung hollow as employers across numerous industries have experienced an uptick in union organizing activities targeted at small fragments of their workforces. As the U.S. Chamber of Commerce highlighted in its Trouble With The Truth: Specialty Healthcare and the Spread of Micro-Union Report, released on October 31, 2016, the following industries have felt the sting of the NLRB’s approval of “micro” bargaining units:

  • General Aviation Service: The proposed unit included only 34 “line service” employees in a general aviation service business with 110 employees overall.
  • Telecommunications: The petitioned-for bargaining unit included 16 T-Mobile field and switch technicians who worked in Long Island, NY but excluded employees who worked in New York City’s boroughs and both Long Island counties.
  • Rental Car Facility: All 109 employees did not share an overwhelming community of interest with 31 rental service agents and lead rental service agents.
  • Retail Department Store: In a Macy’s department store of 150 employees, including 120 sales associates, the approved bargaining unit included only 41 cosmetics and fragrance sales representatives.
  • Fast-Casual Dining: The NLRB approved a bargaining unit which included 17 out of 43 bakers working at six out of 17 Panera Bread cafés.
  • Automobile Manufacturing: The NLRB approved a micro-unit of 152 maintenance workers at a Volkswagen plant despite the fact that the union disregarded the company’s shop structure and essentially “invented” a new maintenance department.

Employers are likely to face the reverberating effects of Specialty Healthcare for years to come. To date, federal courts of appeals have upheld Specialty Healthcare’s “overwhelming community of interest” test and legislative proposals to overturn the decision have proven unsuccessful.

Furthermore, recent NLRB changes have compounded the effects of Specialty Healthcare and more changes may be on the horizon. As Zashin & Rich reported in March 2015, the NLRB’s “ambush” election rules have made it significantly more difficult for employers to run an effective campaign against unionization. In addition, the NLRB may address the following topics before the end of the current presidential administration: regulatory actions related to joint-employment; “captive audience” meetings; and the definition of independent contractors, further hampering employer’s efforts to remain union-free.

Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to any sign of a union organizing effort. Additionally, upon receiving notice that a union has filed a representation petition, no matter how small or fragmented the proposed unit may be, employers should immediately contact counsel to manage the risk of a union gaining a foothold among their workforce.

*Andrew J. Cleves practices in all areas of labor and employment law. For more information about “micro” bargaining unit organizing, the NLRB, or its regulatory decisions, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.