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NLRB General Counsel’s office advises regions on revisiting active cases to eliminate micro-units

By Lisa Milam-Perez, J.D.

On December 15, the NLRB issued a landmark ruling abandoning its 2011 Specialty Healthcare decision, which had permitted unions to organize employees in gerrymandered “micro” bargaining units comprised of employees who favor union representation. In a December 22 Operations-Management memo, the Division of Operations Management in the NLRB General Counsel’s office issued guidance to the regions on effectuating the doctrinal change in active representation cases.

Specialty Healthcare overturned. The Board reversed this decision in PCC Structurals, Inc., which reinstated the agency’s “community of interest” standard for determining whether a proposed bargaining unit constitutes the smallest appropriate unit, in instances when one party argues that other employees were improperly excluded from the petitioned-for unit for purposes of a representation election. Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest among themselves, and the employer contended that the smallest appropriate unit had to include employees excluded from the proposed unit, the NLRB would find the union’s petitioned-for unit appropriate unless the employer proved that the excluded employees shared an “overwhelming” community of interest with the petitioned-for group.

With this significant reversal of Obama-era precedent, however, when the NLRA is called upon to determine whether a group of employees a union seeks to represent constitutes an “appropriate” unit, an employer challenging the petitioned-for unit will simply have to establish that there is a “community of interest” among the excluded employees and those within the union’s petitioned-for unit. In its decision, the Board majority cited “sound policy reasons” for restoring its longstanding community of interest standard, noting it allows the NLRB “to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an ‘overwhelming’ community of interests.”

Guidance to regions. “Regions are to consistently apply the Board’s new analysis at all stages of case processing in currently active cases,” Associate to the General Counsel Beth Tursell instructed the NLRB’s regional offices in OM 08-05, issued December 22. For purposes of the memo, “active cases” are defined as “those open RC, RM and UC cases where the case is not presently before the Board on a request for review and where the employees do not comprise a conforming unit in the context of an acute care hospital.”

Revisiting unit determinations. Specifically, in active cases, the regions were directed to revisit a unit determination pursuant to the Regional Director’s discretion to entertain such requests. “The modification of extant law by the Board in PCC constitutes such an ‘unusual’ or ‘extraordinary’ change in circumstances as to warrant reconsideration of the propriety of a bargaining unit defined under a stipulated or consent election agreement or decision and direction of election in a currently active case,” Tursell wrote. “Regions should routinely afford the parties to an R case an opportunity to argue that the PCC decision has now rendered a recently consented, stipulated or directed bargaining unit inappropriate in a currently active case. Parties should be given an opportunity to revisit a unit determination at this juncture, rather than wait for the Board to determine whether to remand the case pursuant to a later request for review.” Noting that such determinations should be made as a soon as possible, Tursell explained that this guidance applies to cases in both the pre-election and post-election stages.

Notice to show cause. Moreover, even when neither party seeks reconsideration of an election agreement or unit determination in an active case, the regions were advised, when appropriate, to issue a notice to show cause to address the appropriateness of a bargaining unit. Regions should direct any party “to show cause, with specifics, as to why the stipulated or directed bargaining unit is inappropriate pursuant to the analysis set forth in PCC.” The OM instructs the regional offices to issue show cause notices for any currently active case “at any point after entry into a stipulated or consent election agreement, or after issuance of a pre-election decision or post-election determination of challenges or objections unless a request for review has been filed with the Board. (To that end, the General Counsel’s office provided model notices for cases where the unit was determined by stipulated or consent agreement and by decision and direction of election).

Discretion to delay hearings and elections. Prospectively, the GC’s office stressed that the Regional Directors may opt to postpone hearings and elections in light of the PCC Structurals decision, given the likely concerns among the parties as to the impact of the case (and notwithstanding the Board’s currently-in-effect “quickie” election rules). “Regional Directors have always been afforded a wide range of discretion in the handling of representation case matters and they will continue to use their substantial discretion to address the issues that will inevitably arise under PCC,” Tursell wrote. That includes the discretion to set the hearing beyond the eighth day after service of notice of hearing, at least in matters involving unusually complex issues—such as substantial community-of-interest issues. Given the fact-intensive analysis of the issue, parties will likely seek more time to ascertain whether a given unit is appropriate, and prepare for hearing, the OM noted. Regional Directors also have discretion to postpone hearings and the due date for Statements of Position (SOP) for up to two days where special circumstances exist, and more than two business days when called for by extraordinary circumstances. Finally, Regional Directors also have discretion to schedule the election date for the “earliest date practicable,” consistent with Board Rules and Regulations, based on the circumstances of each case. “A substantial change in law such as that in PCC is one such circumstance where, particularly in the short term, additional time may be required to set an election date.”

The OM also addresses the handling of hearings in light of PCC Structurals. Litigating community-of-interest factors will necessarily be fact-intensive, the OM notes; however, hearing officers must nonetheless attempt to streamline the proceedings through stipulations of fact throughout the process, it advises. However, “[m]ere claims or rote citations to PCC will not be sufficient,” Tursell wrote.

“Rather, parties should be strongly encouraged to provide in the SOP specific details in order to warrant consideration for hearing. For example, where community-of-interest factors are at issue, such as in a PCC scenario, the Regional Director should advise the parties to include in their SOP a specific description of those factors, along with the evidence which will be provided in support.” The parties must also identify those employees whose eligibility they intend to challenge at the pre-election hearing, along with the basis for the challenge.

Prior GC memo revoked. Finally, the GC’s office stated that any directives regarding representation case procedures in GC Memo 15-06 (a 2015 guidance issued by former General Counsel Richard F. Griffin, Jr., in applying Specialty Healthcare) are rescinded.