NLRB's Micro-Union Ruling Hurts Workers

Once upon a time, unions had to win elections fair and square to organize the workplace. And it required a majority of workers to form a collective bargaining unit. Today, though, thanks to the tools handed to Big Labor by the Obama Administration’s radical National Labor Relations Board (NLRB), workplaces across the country are bracing for a new type of union. 

In 2011, the NLRB changed decades of longstanding labor laws in its decision on Specialty Healthcare and Rehabilitation Center of Mobile. In effect, the Specialty Healthcare ruling made it easier to unionize workplaces by allowing the creation of “micro-unions” — or the unionization of sub-units of a workforce — fundamentally changing the traditional bargaining unit standard that union elections operated under for decades. 

What seemed like a game changer in labor law was downplayed by the NLRB, which initially assured employers and policymakers that the ruling would apply only to bargaining units in the non-acute health care setting, such as Specialty Healthcare, not industries outside it. In the years since, however, micro-unions — or what some call micro-units — have sprung up in nearly every industry, from retail, manufacturing, delivery services, and telecommunication to rental cars. 

The NLRB may have underplayed its hand, but it knew exactly what it was doing. 

The reality, as outlined in a recently released report by the U.S. Chamber of Commerce, is that unions are using the Specialty Healthcare ruling to gain influence in the workplace even if the majority of the workforce doesn’t want to unionize.  

By grouping workers together in ad hoc ways, union bosses now have the ability — and, indeed, the federal government’s blessing — to cherry-pick individuals who are predisposed to support unionization, in turn increasing their odds of winning organizing elections and increasing membership. And that’s exactly what they’ve done. In the five years since Specialty Healthcare, several companies, including T-Mobile, Panera, and VW, have faced micro-union elections and successes. 

Take Macy’s, for example. In May 2011, the United Food & Commercial Workers (UFCW) tried to unionize all 120 sales associates of the Macy’s department store in Saugus, Massachusetts. The majority of sales associated weren’t interested, and the UFCW lost. 

The next year, however, the UFCW came back and filed a petition to represent the 41 cosmetics and fragrance sales associates within the same store. Using the precedent set by Specialty Healthcare, the UFCW was able to form a new bargaining unit and win, resulting in a micro-union comprised only of the store’s cosmetics and fragrance reps. 

These carve-outs have been music to the ears of Big Labor, and the spread of micro-unions are on the rise. The Specialty Healthcare ruling suggests that the NLRB will approve just about any proposed bargaining unit a union throws its way — with little regard to how small, fragmented, or discordant.

This is exactly what the Board’s lone dissenter, Brian Hayes, warned against. In his dissent, Hayes recognized that the Specialty Healthcare decision represents a dramatic change in precedent. As he put it: “Today’s decision fundamentally changes the standard for determining whether a petitioned for unit is appropriate in any industry subject to the Board’s jurisdiction,” making “the relationship between petitioned-for unit employees and excluded coworkers irrelevant in all but the most exceptional circumstances.” In other words, it’s an outrageous re-characterization of the workforce. 

Today’s employers are facing an assault from Big Labor like never before, and the NLRB is simply paving the way. This isn’t the first time the Board has downplayed a significant policy change with national ramifications; and, unfortunately, it probably won’t be the last.

The NLRB cannot be trusted to stand as an unbiased arbiter of disputes and champion of America’s workforce. From micro-unions to the joint employer standard to sped-up, so-called “ambush” elections, the Board has gotten completely out of control.

It’s time for Congress to stop talking and start acting by using the power of the purse to curtail the NLRB’s egregious overreach as well as passing legislation to overturn its anti-worker and anti-business rules.

Heather Greenaway is a spokesperson for the Workforce Fairness Institute (WFI).