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NLRB Developments

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On Wednesday, June 26, SHRM member and Labor Relations Special Expertise Panel co-lead Eric Oppenheim, SPHR, testified before Congress in support of a bill to nullify the NLRB’s 2011 ruling in NLRB v. Specialty Healthcare on so-called micro-bargaining units.

In the Specialty decision, the NLRB applied a new framework for determining appropriate bargaining units of employees. To establish a bargaining unit, the NLRB traditionally determines if the relevant employees share a community of interest. Under the new Specialty framework, the NLRB generally finds a labor union’s petitioned-for unit appropriate as long as it is a clearly identifiable group of employees. The employer must then demonstrate that employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit, or the NLRB approves the union’s proposed unit. Meeting this new standard is a significant burden for employers, and, thus, the Specialty decision allows labor organizations to form “micro-bargaining units” by permitting them to target subsets of employees who are most likely to support the union.

Appearing before the U.S. House Subcommittee on Health, Employment, Labor, and Pensions, Oppenheim [pictured above left conferring with Subcommittee chair Phil Roe (R-TN)], outlined SHRM’s concern that the NLRB’s Specialty decision could create a burden for HR professionals and employers in managing multiple small bargaining units of employees who have different wages, hours and working conditions. As a result, he testified on behalf of SHRM in support of the proposed Representation Fairness Restoration Act (H.R. 2347) that would restore the pre-Specialty standard for determining appropriate bargaining units of employees.

“SHRM is very concerned that the micro-union standard established in the NLRB’s Specialty decision is imbalanced and may harm employee morale, deprive employees of professional development opportunities and compel employers to negotiate with and manage unnecessarily small bargaining units of similar employees,” said Oppenheim, who is chief operating officer at Republic Foods in Rockville, Md.

A Burger King franchisee with about 530 employees, Oppenheim noted the decision’s potential negative impact on employee development and morale. “The workforce fragmentation caused by the decision may deprive employees of autonomy at work,” he said. As a result, he noted, the Specialty decision could be “detrimental to employees trying to balance life, school and work. This is because smaller, superfluous bargaining units will mean fewer shifts available to employees.” He went further, saying the decision “could create morale problems when employees work side-by-side with those having different wages, benefits and working conditions.”

The SHRM-supported H.R. 2347 may be considered by the full House Education and Workforce Committee later this summer.

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