NLRB overrules Specialty Healthcare micro-unit rule

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PCC Structurals (NLRB 12/15/2017) [Decision] has overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).

Specialty Healthcare allowed a union to get an NLRB election for a small unit of employees – a unit that would not have been allowed using traditional community-of-interest standards. Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, and those employees shared a community of interest among themselves, but the employer wanted the unit to include employees excluded from the proposed unit, the Board would not find the petitioned-for unit inappropriate unless the employer proved that the excluded employees shared an “overwhelming” community of interest with the petitioned-for group. [FYI, that's pretty hard to prove.]

To cite one example, in Macy’s, Inc., 361 NLRB 12 (2014), the Board found appropriate a unit limited to employees in a department store’s cosmetics and fragrances department - one of 11 sales departments in the store – even though the Board’s longstanding rule favors storewide units in the retail industry.

It has long been understood that it is often much easier for a union to organize a small unit (a/k/a micro-unit) than to organize a larger unit. Employers dislike micro-units both because they are easier to organize and because the employer ends up with a fragmented workforce.

In PCC Structurals the union proposed a unit of 100 welders. The employer wanted the unit to be a wall-to-wall unit of 2,565 employees. The Board changed the analytical standard, but left it to the Regional Director to determine the appropriate unit.

Chairman Philip A. Miscimarra was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Members Mark Gaston Pearce and Lauren McFerran dissented.