Trump Board Drops the Hammer on Specialty Healthcare, Makes it Harder for Workers to Organize in their Preferred Unit

You may have heard about the flurry of anti-union decisions issued by Trump’s National Labor Relations Board to close out 2017, referred to by one expert as a “December Massacre.” In the days before NLRB Chairman Miscimarra’s term expired, the Board unexpectedly spit out five decisions—all of them overturning significant board law in a way that is unfavorable to Unions and workers.

One of these cases, PCC Structurals, Inc., gives employers more opportunity to “flood” the voting pool in a Union election with additional workers who are not part of the Union’s proposed unit. The case overrules an Obama Board decision, Specialty Healthcare, which allowed elections to proceed based on the bargaining unit requested by the Union, as long as the workers in that unit (1) were a readily identifiable group; and (2) shared a “community of interest” based on established factors such as job classification, department, work location, skills, contact with other employees, shared conditions of employment, and similar factors.

Under the Specialty Healthcare rule, once a Regional Director determined that a petitioned-for group constituted an appropriate unit, the election would proceed—unless the employer could show that other workers also shared an “overwhelming” community of interest with the workers in the Union’s original petition.  If the employer succeeded in showing the additional workers had an overwhelming community of interest with the petitioned-for workers, the Regional Director would order those additional workers eligible to vote in the Union election.

Now, PCC Structurals, Inc. returns the parties to a pre-Specialty Healthcare community of interest test.

The employer no longer has the burden to show that workers have an “overwhelming community of interest” in order to add them to the voting pool. Instead, Regional Directors are required to assess the “interests” of the excluded employees.

When an Employer seeks to include additional employees, a vote of the Union’s proposed unit will be directed only if the interests of the petitioned-for unit are “sufficiently distinct” from the other workers’ interests. It is unclear what the Board means by “sufficiently distinct.” This recent decision does not affectelections in acute healthcare facilities such as hospitals: those elections are governed by a different set of rules.

The Board’s rushed decision in PCC Structurals, Inc. left us with a vague standard that makes it difficult to predict who may be allowed to vote in an election. The ruling gives employers more opportunity to delay the election process and undermine workers’ right to organize. However, we have been down this road before. When organizing for an election, plan to include all the workers who might share a community of interest, or be sure to work through your strategies with an eye toward these recent developments.

Contact your labor law counsel with any questions.

By Xochitl A. Lopez | January 19, 2018

Legal Developments