What on the surface appears to be a narrow case involving nursing home workers, could potentially reshape the way 'bargaining units' are created in six million companies covered under the National Labor Relations Act (NLRA), industry advocates have warned.  

Despite losing out on major legislative priorities like “card check” and binding arbitration, which were included in the Employee Free Choice Act (EFCA), organized labor could still find a way to regain its footing in the private sector through rulemaking changes. Brian Haynes, a Republican member of the National Labor Relations Board (NLRB), explains how this can occur in a strongly worded dissent attached to the Specialty Healthcare and Rehabilitation Center of Mobile case.

Under the current system, organizers must gain support from over 50 percent of an entire storewide bargaining unit. However, the legal reasoning at work in Specialty makes it possible for just 10 pharmacy workers, or 15 auto shop workers, or 20 loading dock personnel to all form separate unions.  Employers would have to negotiate separate contracts with each group, while losing the flexibility to reassign workers to different jobs within the organization.

The NLRB, the agency charged with overseeing union organizing efforts and investigating unfair labor practice charges for private sector workers, could potentially overstep its authority with a ruling that establishes “mini-unions,” Haynes, the Republican member, suggested in his dissent:

 “I see no reason to embark on this ill-considered path at all, much less only a scant few months after the Board’s most recent rejection of the view that a unit consisting of all employees who do the same job at the same location is appropriate, without considering whether the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.

Further, while the Board has broad discretion to make law through case-by-case adjudication rather than through rulemaking, I believe my colleagues’ actions test, and likely will exceed, the limits of that discretion here. They are contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction—a test that has stood for at least 50 years.”

The Steelworkers and the Service Employees International Union (SEIU) have previously pushed for rulemaking changes that would make it possible for any number of workers to unionize regardless of job classification. The concept was rejected during the Bush Administration, but it is evident that union officials remain committed to the concept.

“Nothing is as bad as card check,” James Sherk, a labor expert with the Heritage Foundation, said. “But this idea that the board should recognize unions that don’t represent a majority of workers should be a major point of concern. The idea here is to narrowly define bargaining units when organizers know they cannot get a majority of workers and it should not be permitted. The NLRB has been smacked down before and my suspicion here is that another court would have the final say.”

Glenn Spencer, executive director of the Workforce Freedom Initiative with the Chamber of Commerce, views the potential rule change as a payback to union bosses who invested heavily in the election of a Democratic president and a Democratic congress in 2008.

“This would give a major advantage to union organizing within nonunion companies,” he observed. “It is difficult to overstate how damaging this could be for the private sector and for business owners.”

The next deadline in the Specialty case comes on March 8 when public briefs from the Chamber of Commerce and other groups are due. The direct parties in the case then have until March 22 to reply. At that point, a decision could come at any time.

Kevin Mooney  is an Investigative Reporter with The Pelican Institute in New Orleans, Louisiana