Hunton Employment & Labor Perspectives

On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.

The Representation Fairness Restoration Act expressly seeks to eliminate “micro-bargaining units,” stating “[t]o avoid the proliferation or fragmentation of bargaining units, employees shall not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.” Senator Isakson has introduced this bill in every Congress since the Board’s decision in Specialty Healthcare in 2011 with little success due to the looming inevitability of President Obama’s veto power. While it is unclear if the Representation Fairness Restoration Act will be enacted, now that the Republican’s control the House of Representatives, Senate, and presidency, the bill—for the first time since the Specialty Healthcare decision—at least stands a chance to become law.

While Republican lawmakers are eager to overturn the Board’s Specialty Healthcare decision, newly Trump-appointed Charmain of the National Labor Relations Board Philip Miscimarra may beat them to the punch. Since the decision in 2011, Member Miscimarra has expressed open hostility towards the decision in numerous dissenting opinions. For example, in one dissent where the Board followed its Specialty Healthcare precedent, Member Miscimarra stated that he would “not apply Specialty Healthcare here or in any other decision” because “Specialty Healthcare is inconsistent with the role that the Board has been admonished to play ‘in each case’ when deciding the appropriate unit.” Macy's, 361 NLRB No. 4 (July 22, 2014).

The Specialty Healthcare decision is just one of many Obama-era Board decisions on the chopping block now that Republicans are in control of Washington, D.C. And though it is unclear whether Specialty Healthcare will be overturned by Senator Isakson and Representative Rooney’s newly-introduced legislation or the Board itself, the days of micro-bargaining units may be numbered.