NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units”

Jason E. Reisman

Well, I was wrong. In my last post, I said that it looked like the “quickie election” rules were up next for the National Labor Relations Board to address. Clearly, those rules are still on the radar, as public input is in progress.

However, Republican-appointed Chairman Phil Miscimarra is making up for all of the labor-friendly opinions during Obama’s administration where he found himself in the minority, left to argue seemingly in vain in some classic dissenting opinions. Now, he’s been leading the majority charge to “right” as many Obama Board “wrongs” as possible before stepping away from the Board on Saturday.

Friday, we witnessed two more bold moves before he departed:

  • The Board overturned the 2011 Specialty Healthcare ruling that gave unions too much control in deciding the scope of a bargaining unit, allowing them to organize “micro units” of workers, almost without regard to any shared interests with a larger group of workers. Essentially, a union could seek a to have an election for any group of employees where it could garner majority support, even if that group of workers was only a small subset of a larger complement of employees. If the employer asserted that the correct bargaining unit should include the larger group, it was forced to meet a heightened standard by proving that the excluded workers share an “overwhelming” community-of-interest with those included in the union’s proposed unit. In a new case involving PCC Structurals Inc., the Board returns to the traditional “community-of-interest” standard that it has applied throughout most of its history.
  • The Board overturned its 2016 decision involving Dupont that limited an employer’s ability to implement unilateral changes in unionized workplaces. In today’s decision involving Raytheon Network Centric Systems, the Board returned to its standard from 1964, holding that an employer’s action does not constitute an illegal unilateral change where it is similar in kind and degree with an established past practice consisting of comparable unilateral actions.

Honestly, I have to admit I’m surprised by the efficiency of the new, full complement of Board members and the alacrity with which new General Counsel Peter Robb is operating (i.e., attacking the Obama Board’s labor-friendly decisions). But, hey, as an employer, you have to admire Chairman Miscimarra squeezing every last ounce of his energy into pushing out decisions targeting Obama-era decisions, especially as he previously was on the “losing” end of so many of them. Now, there could be a lull, as we wait for President Trump to nominate a replacement.

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