Rise of the 'Microunits'

A recent court decision now makes it easier for unions to establish "micro-bargaining units," which legal experts say may give employers a more difficult fight when challenging them.

Tuesday, September 10, 2013
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A recent decision by the 6th U.S. Circuit Court of Appeals may cause sleepless nights for some HR professionals with unionization concerns at their organizations.

The ruling in Kindred Nursing Centers East v. NLRB, (case numbers 12-1027 and 12-1174 in the U.S. Court of Appeals for the 6th Circuit) enables unions to organize micro-bargaining units in non-acute healthcare facilities. The controversial decision is a significant legal development under the National Labor Relations Act, for several reasons, says D. Albert Brannen, attorney at Fisher & Phillips in Atlanta.

Although the decision may not change the way most HR professionals conduct business, he says it demonstrates the deference that the Circuit Court of Appeals gives to the National Labor Relations Board to determine what is an appropriate bargaining unit. By making it easier for unions to establish microunits, employers will have a more difficult time challenging them.

The board's decision overrules its 1991 decision, which established a litmus test for determining the appropriateness of a bargaining unit in non-acute healthcare facilities. It focused on a community-of-interest approach that considered commonalities among employees, ranging from their supervisors to job duties.

In this most recent case, Kindred -- which also does business as Specialty Healthcare and Rehabilitation Center -- argued that the union cherry picked 53 certified nursing assistants, declaring this subset of the service and maintenance unit as an appropriate bargaining unit, says Brannen, adding that the union ignored 33 other employees in the same unit who may not have wanted to unionize. The NLRB's regional director ruled the CNAs constituted an appropriate bargaining unit for an election. An election was held and -- not surprisingly -- the union won. ruling wound its way up to the 6th Circuit, which upheld the board's decision.

Now, the board no longer needs to engage in rule-making, can change policy through the internal workings of the board and decide which cases to prosecute, says Brannen.

Still, opinions are widespread.

John Quinn doesn't understand what all the fuss is about, believing the ruling is a return to some fundamental approaches for the board to make unit determinations.

As regional counsel for the Communications Workers of America in Atlanta, he says times have changed since 1991. A re-evaluation was needed because the field of healthcare has evolved since the previous decision. Now, for example, there are many different positions in the field, including different classes of nurses that may not share similar interests.

"I don't think that employers [that] don't object to collective bargaining would find any great surprises here," says Quinn. "What the circuit decision says is,if you have distinct groups of employees who share a community of interest, under a traditional board law, that presumptively is an appropriate unit for collective bargaining."

But Brannen believes the ruling may snowball across other industries. Since the initial ruling in 2011, only a handful of microunits have been formed. One example is Macy's department store in Saugus, Mass. Brannen says more than a year after the union failed to represent the store's workers, it formed a microunit of employees who sold fragrances and cosmetics, then urged the NLRB to order an election. The board's decision is pending.

"For the employer, that's ridiculous to have that many groups of employees that you're bargaining with," Brannen says. It could lead to a fractured workplace, competition between employee groups, and requires an inordinate amount of HR time in collective bargaining, he says.

That's something Quinn disagrees with.

He says CNAs are entitled to a bargaining representative who will look after their unique interests versus registered nurses or those in housekeeping who may have conflicting interests.

"Just take a deep breath," Quinn says, "and recognize that this ruling is pretty much confined to non-acute healthcare where there are well-defined categories of employees. If you're in that business, then you've got greater clarity and certainty of what are appropriate bargaining units."

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If an HR leader is concerned that microunits may be formed, it can be proactive, says John Jansonius, an attorney at Jackson Walker in Dallas.

He says HR needs to consider its workforce as distinct employee groups and address pockets of concern on a departmental or job classification level. Is there a morale problem among maintenance workers? Are customer-service employees complaining about their paycheck?

HR, he says, can also enhance cross-training or create a job-rotation program.

"It can make your case stronger, that a much larger unit is appropriate because your employees are working in multiple areas on a regular basis," Jansonius says. "You do have a community of interest that's much broader than any specific job classification."

No matter what approach is used, Jansonius says HR needs to be careful and observe the acronym TIPS: no threats, no interrogation, no promises and no surveillance in order to remain complaint with Section 7 of the National Labor Relations Act, which protects an employee's right to form or join a union.

However, HR does have the right to hold voluntary meetings to educate employees about unions and present facts as to why it opposes them, says Brannen. He points to examples such as the potential for strikes, union dues and fines, and that the company may be at-risk of becoming noncompetitive in a global market.

For most HR professionals, however, their world will remain the same, according to Terrance McGann at Whitfield McGann & Ketterman, a Chicago labor and employment-law firm. He says addressing employee concerns and treating workers fairly represents the type of leadership that all corporate America needs to adopt. When management embraces that kind of approach, he says workers usually aren't interested in union representation.

"This microunit is kind of the new nomenclature," McGann says, adding that he doubts the Supreme Court will be interested in reviewing the case.

"Unions aren't the great evil that they're perceived to be," McGann says. "HR needs to be concerned, but this doesn't drastically change anything that took place before the 6th Circuit came out with this decision."

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