The Board in its decision redefined what constitutes an appropriate collective bargaining unit. Prior to Specialty Healthcare, all workers sharing a “community of interest,” such as similar wages, job functions and skills, were grouped together in a bargaining unit. All of these employees would then participate in the organization, and receive the representation of, any prospective union supported by a majority of workers. Only employees with distinct attributes and interests could form a separate union or abstain from representation. Now the NLRB has determined that when a union petitions to organize employees it can “gerrymander the workplace” into so-called “micro-unions” based on very specific job descriptions. This changed the appropriateness of a unit from a “community of interest” standard to being determined upon “the extent to which the employees are organized.” However, the Board’s new interpretation of an appropriate collective bargaining unit conflicts with federal law governing private-sector worker rights. Section 9(c)(5) of the National Labor Relations Act “forbids the Board from giving this factor controlling weight.”At the Cornell conference, Griffin remarked that he will not disclose the content of the guidance until the NLRB rules on pending cases, where the appropriateness of micro-unions has been challenged by Macy's and Neiman Marcus. Most likely, the Board will rule against employers and in favor of unions on the appropriateness of micro-unions. Then the Board's guidance will solidify union's ability to organize workers into micro-unions at any private-sector workplace. While allowing micro-unions is bad policy (it fragments workplaces and burdens employers who could have to negotiate with multiple unions), the NLRB's procedure in implementing this policy is far worse. This is just another case of the NLRB using judicial fiat to rewrite policy that normally and appropriately are left to the regulatory process or Congress. Senator Orrin Hatch, Johnny Issakson and Michael Enzi explain this phenomenon in an amicus brief:
Since 2010, the Board has invited parties to submit briefs in at least six other significant decisions. The number of cases within this short time frame in which Board has announced its intent to implement significant policy changes raises concerns that the Board may be forcing policy through adjudication that should be properly considered through rulemaking, thereby circumventing the protections of the APA. This emerging trend at the Board and its outcome may well warrant future Congressional oversight and limitations.Fortunately a remedy is already in place. Over the summer, Representative Tom Price introduced the Representation Fairness Restoration Act, which, if passed, would reverse the Specialty Healthcare decision and eliminate micro-unions as an appropriate bargaining unit.