Micro-Units Are Back In Healthcare Union Organizing

Husch Blackwell LLP

Hospitals and non-acute care settings beware: Micro-Units are about to make their way back into Healthcare Union organizing. Over the coming months, we can expect to see many significant changes to labor issues affecting healthcare and other sectors of our marketplace. The National Labor Relations Board (“NLRB”) is almost certain to reinstate the standards of what constitutes an appropriate bargaining unit as set forth in a 2011 case, Specialty Healthcare, allowing unions to target smaller groups of employees to organize. This case has encouraged Union organizing of Micro-Units in various settings, especially healthcare. The Board had overruled that decision in 2017, PCC Structurals, Inc., and returned to “community of interest” analysis which reviewed whether the unit employees “share a community of interest sufficiently distinct from the interest of employees excluded from the petition-for group to warrant finding that the purposed group constitutes as separate bargaining unit.”

Under Specialty Healthcare the employer had a burden to show an “overwhelming community of interest” with those employees excluded from the bargaining unit selected by the union in order to seek a larger unit for organizing purposes.  Unions had used this standard as a license to organize smaller sets of employees in hospitals, non-acute care settings, and elsewhere, that would otherwise have been inappropriate under the previous standards. (See my partner’s blog from September 2017, Micro-Units Going, Going Gone…? By Terry Potter).

The Specialty Healthcare case is instructive as to the significance of allowing Micro-Unit organizing.   In that case, the Union organized only the CNA’s in a non-acute care facility. The employer argued that all nonprofessional support personnel, not just CNA’s, would make an appropriate bargaining unit, but by excluding those other employees, the Union was inappropriately restricting the scope of the bargaining unit.  This limitation was presumably to advantage organizing that small group.  The then majority Obama appointees supported creation of this “Micro-Unit” while a vigorous dissent was presented by the Bush appointed Board members, claiming this case represented a significant change of NLRB precedent.

It seems nearly certain that once the Biden Administration can put its appointees to the NLRB in the majority, Micro-Units will make their return.  President Biden has already demonstrated his willingness to adopt a pro-union agenda.  Indeed, one of President Biden’s first actions was to request the immediate resignation of the Trump appointed General Counsel to the NLRB and failing that, in an unprecedented move, the President discharged General Counsel Robb the following day. He also replaced the NLRB Chairman, and appointed the Board’s lone Democrat as the Chair.

The first National Labor Relations Board seat to come up for reappointment by the President is held by William Emanuel, and his term will expire in August, 2021.  He undoubtedly will be replaced by one more comfortable with the Union’s agenda to tilt the balance of power in organizing.  Micro-Unit organizing is but one such pro-union move we will likely see.

By understanding a greater vulnerability to Union organizing efforts, employers are wise to look carefully at providing wages and benefits that fit well within their market.  Perhaps even more importantly, management should carefully select well trained front line supervisors, provide consistent policy application, and offer transparent communication to reinsure employees that direct relationships with their employer result in satisfying career opportunities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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