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Specialty Healthcare Death Throes Continue

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A week before Christmas employers got an early present when the newly constituted republican majority at the NLRB overruled the “overwhelming community-of-interest” unit configuration union election standard set out in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).  In PCC Structurals, Inc., 365 NLRB no. 160 (December 15, 2017) the NLRB reset the clock and went back to applying its traditional community-of-interest factors when determining an appropriate unit (the proper grouping of employees for purposes of a union election.)

 

On the heels of PCC Structurals, and as reported here by my partner David Pryzbylski, on December 22, 2017, the new NLRB General Counsel, issued an Operations Management Memorandum (OM 18-5) directing Regional Directors to heed PCC Structurals teaching and to allow reconsideration of currently active union election unit determination issues.

 

Yesterday, the D.C. Circuit joined the parade by issuing an ORDER in Volkswagen Group of America, Inc. v. NLRB Case No. 16-1309 Consolidated with 16-1353. The issue in this case was whether the United Auto Workers (UAW) properly petitioned under Specialty Healthcare for a unit of only maintenance employees, seeking to exclude the plants several thousand production employees from the unit.  On December 26, 2017, in another blow to the Specialty Healthcare standard, and a particular blow the UAW, the D.C. Circuit issued a one line ORDER remanding the case to the NLRB to consider the unit issue in light of the NLRB’s PCC Structurals traditional community-of-interest standard.  What is clear is that the PCC Structural’s decision is having a far reaching impact.

Keith Brodie

Keith J. Brodie is a partner in Barnes & Thornburg LLP’s Grand Rapids, Michigan office. He devotes his practice exclusively to labor and employment law. He is a practitioner and counselor to his clients on labor matters including collective bargaining, union organizing, NLRB unfair labor practice charge defense, and labor strategies for mergers, acquisitions and reorganizations.

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