Few decisions in labor law caused the uproar we saw in 2011 stemming from the National Labor Relations Board’s (NLRB) decision in Specialty Healthcare & Rehabilitation Center of Mobile. That decision led to numerous “micro-units” being certified over the course of several years. In 2017, however, the NLRB overruled Specialty Healthcare and enunciated a new standard that disfavored such units.
“In PCC Structurals 365 NLRB No. 160 (2017), as revised in The Boeing Co., 368 NLRB No. 67 (2019), the Board overruled the prior standard for determining if a proposed bargaining unit is an appropriate unit, which was set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). In today’s notice, the Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions: 1. Should the Board adhere to the unit-determination standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019)? [and] 2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?”
With the new composition of the Board, it is likely Specialty Healthcare will be revived. Historically, the NLRB favored all-inclusive “wall-to-wall units” (e.g., production and maintenance employee units in the manufacturing setting). In contrast, micro-units are fractional, as they generally seek to decrease the size of the unit and make union organizing easier.
For example, a union could believe it has ample support in a manufacturing plant among maintenance employees, but not production employees, so it could seek to only represent the maintenance workers – in which case the employer would be left dealing with a labor agreement only applying to half of the workforce and likely resulting in inequities among its employees.
Prior to 2011, the NLRB often disapproved of micro-units, but Specialty Healthcare made it easier for unions to seek such groupings – and that could again be the case in the near future.
Employers should take notice of this and prepare for changes on this front.