The Federal Court of Appeals on August 15 upheld a controversial National Labor Relations Board decision that has the potential to radically change the way unions organize a workforce. According to Cliff Hammond, an attorney with Detroit-based employment law firm Nemeth Burwell, P.C., the NLRB’s decision in Specialty Healthcare overturned nearly 20 years of Board precedent regarding the proper standard for determining an appropriate unit of employees for purposes of collective bargaining.
“The decision is important for employers as it has the potential to lead to an increase in micro-units, which allow unions to selectively organize in the smallest unit possible,” said Hammond. “Micro-units can drastically increase the difficulty and complexity, and ultimately cost, of labor relations for an employer because of the potential to create multiple new bargaining units with different contracts and different unions within one employer location.”
The new ruling addressed the “community of interest” standard that looked at factors such as similarity of job function, pay and hours, duties or skills of the employee, as well as the overall structure of the workforce. The NLRB rejected the former community of interest standard that placed the burden of proof on the union, citing it as obsolete.
Previously, if a union attempted to organize certain classes of employees, an employer could challenge the unit on the basis that additional classes of employees should also be included. The prior system was based on practical reasons in order to avoid multiple bargaining units and contracts for similar types of employees. Now, under this ruling, the burden of proof is on the employer to show that excluded employees share an “overwhelming” community of interest and therefore must be included in the unit. This change makes it significantly easier for a union to organize a workforce, one small group of employees at a time, says Hammond.
“The NLRB sought to eliminate what it viewed as an obstacle for employees to exercise their rights of self-organizing and collective bargaining, noting that the determination of an appropriate unit often led to what the Board referred to as unnecessary or prolonged litigation between employers and unions,” said Hammond. “We have already seen the formation of micro-units take shape in retail prior to the NLRB ruling; health care is poised to do the same, especially given the NRLB’s precedent setting ruling directly addressed a health care entity.”
Hammond says the health care industry lends itself well to the organization of micro-units given the way the field is structured.
“The health care industry has a large number of employees who are ripe for organizing efforts. Under the prior system where the larger group of employees had to have a community of interest, it was difficult to organize them and obtain the 30 percent necessary of the larger group to file a petition for a union election. However, with the new opinion, smaller groups can be identified as sharing a community of interest and therefore easier to organize,” said Hammond.
According to Hammond, given the way leading markets such as health care have been aggressively organizing drives, employers should be prepared for more divide and conquer organizing strategies, aided by the addition of the micro-unit option.
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