In a decision with particular importance for non-acute health care facilities but clear application for nearly any kind of employer, the NLRB changed its standard for evaluating which classifications of employees a union can organize.
When a union seeks to organize employees at a particular employer, it must identify which classifications of employees will form an appropriate "bargaining unit" that the union can represent. The employer can object if it thinks the union’s proposed unit is inappropriate. In resolving such disputes, the NLRB will determine which employees share a “community of interest” with each other. It can subtract some of the classifications the union proposes to represent if they do not share a community of interest with the others, or add other classifications if there is no community of interest without them.
Why does it matter? To employees, whether their classification is in or out of the bargaining unit makes the difference between being unionized or not. For a union, being able to define the bargaining unit allows it to choose the classifications it thinks have the pro-union employees it needs to win the election where employees choose whether or not to unionize. For an employer trying to oppose a unionization drive, the opposite is true. And for everyone, if the employees choose to unionize, a bargaining unit of random classifications of employees can be unworkable when the parties sit down to bargain.
In 2011, on the day before union-friendly Board Member Wilma Liebman’s term ended, the Democrat-controlled Board issued its Specialty Healthcare decision, making two important changes to how it evaluated proposed bargaining units. First, it ended the Board’s practice of using its recent research and experience in health care settings to give it a pragmatic and empirical approach to evaluating community of interest in non-acute health care facilities. Second, it changed how it evaluated community of interest in nearly all other industries. From then on, the Board would give more deference to the bargaining unit the union proposed. If an employer thought that the unit was inappropriate without the addition of other classifications, it would have to meet an extremely high standard, proving that all those classifications shared an “overwhelming” community of interest.
Where We Stand Now
On December 15, 2017, the day before employer-friendly Board Member Philip Miscimarra’s term ended, the Republican-controlled Board issued PCC Structurals. It reversed Specialty Healthcare, returning to the pre-2011 way of evaluating proposed bargaining units. From now on, the Board will use its pragmatic and empirical approach in non-acute health care facilities (acute health care facilities already had special rules that were never affected by Specialty Healthcare). And in all industries, unions will not be able to exclude other classifications of employees from the bargaining unit so easily.
The Bottom Line
Now that the NLRB has changed the way it evaluates bargaining units proposed by unions, employers once again will have a realistic way to argue that additional classifications of employees should be included in an election. Knowing this, unions will shift their bargaining strategies accordingly. Employers that want to stay ahead of the coming trends should modify their strategies to adapt to these changes.