How Congress Can Prevent Micro-Unions

By Matthew Lipina

In a report published by the U.S. Chamber of Commerce last Monday, the business-oriented group documents the rise of ‘Micro-Unions’ and suggests Congressional action in order to eliminate the threat.

The report states that the National Labor Review Board (NLRB) – an independent U.S. government agency responsible for enforcing labor law in relation to collective bargaining and unfair labor practices – approved the first ever Micro-Union in 2011 with a 3-1 decision referred to as Specialty Healthcare and Rehabilitation Center of Mobile. The ruling created an opportunity for labor officials to organize small groups of workers within a company, as opposed to the entire workforce, fundamentally changing the way bargaining rights are determined and voted upon in union elections.

The Board’s decision undermines Section 9(c)(5) of the National Labor Relations Act (NLRA) of 1935, which states that there must be a majority of employees of unionization in order for a group of employees to form a union.

Since 2011, Specialty Healthcare opened the door for the creation of several Micro-Unions. In the first case, a New Jersey based aviation company called First Aviation Services, fought the International Association of Machinists & Aerospace Workers (IAM)’s efforts to represent 34 distinct workers within the 110 employees that worked for the company. As a small business, there are many cases where duties between the 110 employees overlap in order to better the business as a whole. First Aviation Services said that there was no reason why those 34 specific employees seeking unionization were any different than the remaining workers, and that there was not a majority who wanted to unionize. The NLRB declined to hear the company’s appeal in a 2-1 decision.

In a similar case, a union was looking to organize 17 of the 43 bakers who worked at Bread of Life (Panera) in Michigan. The employees were all given the same job title, reported to the same supervisor, and were given the ability in their employment contract to work at any of the company’s 17 stores. Citing the logic outlined in Specialty Healthcare, the regional director of the NLRB said that, ‘“it is undisputed that the employees in the West Michigan Market share the same job duties, terms, and conditions of employment, and a bonus plan,’ but they do not share the ‘overwhelming community of interest’ required by Specialty Healthcare.” As of September 2016, the Bread of Life case was being appealed to the United States Court of Appeals for the District of Columbia, although the NLRB notified the court that the two sides were close to agreeing on a settlement.

Congress should work to overturn the NLRB’s ruling and pass additional legislation including the Employee Rights Act – H.R. 3222 and S. 1874, which would rebalance labor law in favor of workers and employers instead of union bosses.

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