In a move eagerly anticipated by labor and dreaded by employers, the NLRB today issued its decision in Specialty Healthcare. I’ve referred to this case several times over the last few months, and for good reason. The case presented the NLRB with a chance to redefine what constitutes a unit of employees that’s appropriate for bargaining.
The NLRB seized the opportunity to, in the words of board member Brian Hayes’s withering dissent, “define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included” (emphasis added).
In other words, a union may now cherry-pick for organizational purposes only those employees it believes support the union, and the burden falls on the employer to show that other employees should be in the unit because the excluded employees share an overwhelming community of interest with the union’s cherry-picked employees.
Bottom line: It will be significantly easier for unions to organize almost any workplace, thus stemming the steep decline in private-sector union membership. Workplaces previously thought by employers to be insulated form organizational efforts now are much more vulnerable, almost as vulnerable as they would have been had the Employee Free Choice Act passed.
I’ll address this in greater detail shortly, along with a companion case issued today, Lamons Gasket.
— Peter Kirsanow is a former member of the National Labor Relations Board.