By Marni von Wilpert, Economic Policy Institute
On Friday, the Trump administration’s appointees to the National Labor Relations Board (NLRB) once again made it more difficult for workers to join together and form a union, by overturning the Board’s standard for determining an appropriate bargaining unit, as established in 2011’s Specialty Healthcare case.
Under the National Labor Relations Act, private-sector workers who wish to be represented by a union can petition the NRLB to hold a union election. Federal labor law gives the Board wide discretion to determine the appropriate “bargaining unit,” the term for the group of workers that will vote in the election and will be represented by the union. In Specialty Healthcare, the Board established that once an appropriate unit of employees is identified based on the employees’ “community of interest,” an employer can only petition to add more employees to the unit if the employer can show the additional employees share an “overwhelming community of interest” with the workers who are already in the bargaining unit. This standard is important to prevent employers from attempting to manipulate or gerrymander the bargaining units in order to thwart their employees’ union elections. The NLRB’s standard for determining an appropriate bargaining unit in Specialty Healthcare has been unanimously upheld in all seven U.S. Courts of Appeals in which it has been challenged.
Since the NLRB issued its decision in Specialty Healthcare corporate special interests have assailed it as inviting the proliferation of “micro” units that will allow unions to form small pockets of unionized employees among an employer’s workforces. However, data on the median size of bargaining units disproves the argument that the standard would lead to the proliferation of so-called “micro-units”—the median size of bargaining units has hardly changed since the Board issued its Specialty Healthcare decision in 2011.
Why then were the Chamber of Commerce and other corporate interest groups committed to doing away with the Specialty Healthcare standard? They simply want to make it easier for employers defeat an organizing campaign, by manipulating who is in a bargaining unit. By overturning this rule, the Trump administration has once again shown that it wants to make it harder for workers to organize and join unions.