NLRB GC goes after micro-units

Now that PCC Structurals (NLRB 12/15/2017) [Decision] has overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and stopped allowing "micro-units," the NLRB's General Counsel announced an aggressive program to "consistently apply the Board’s new analysis at all stages of case processing in currently active cases." In other words, using traditional community of interest standards. Memorandum OM 18-05, "Representation Case Procedures in Light of PCC Structurals" (12/22/2017 [PDF].

The only exceptions will be cases "presently before the Board on a request for review and where the employees do not comprise a conforming unit in the context of an acute care hospital."

The Memorandum allows parties to relitigate directed bargaining unit determinations that were made under the Specialty Healthcare standard. It also allows withdrawal from election agreements.

The Memo says Regional Directors have discretion to revisit unit determinations under "unusual circumstances,” and to re-open the record after a pre-election hearing is closed or after issuance of a decision if there are “extraordinary circumstances.” And guess what? PCC's change in the law is such an “unusual” or “extraordinary” change in circumstances as to warrant reconsideration.

Even if a party does not seek reconsideration, Regional Directors are told they should issue a Notice to Show Cause directing any party to the case to show cause, with specifics, as to why the stipulated or directed bargaining unit is inappropriate pursuant to the analysis set forth in PCC

Finally, the Memo allows Regional Directors to set a hearing later than eight days after Notice of Hearing, to postpone hearings and the due date for the Statement of Position, and to add additional time for setting an election date.

So, folks, employers now have a second bite at the apple when it comes to cases involving micro-units.

[Earlier comments on the PCC case: NLRB overrules Specialty Healthcare micro-unit rule.]