“Micro-unionism” has been a fact of life of organized labor for nearly six years. Two Capitol Hill lawmakers, Sen. Johnny Isakson, R-Ga. (in photo), and Rep. Francis Rooney, R-Fla., believe that’s long enough. Last Thursday, the pair unveiled a bill, the Representation Fairness Restoration Act (S. 1217, H.R. 2629), that would end the practice of organizing individual sections of workers (rather than all workers) at a given employer or job site to ensure a favorable representation vote. The measure would restore the definition of a bargaining unit that had been overturned by the National Labor Relations Board in 2011. Unions are using the ruling to great advantage. Sen. Isakson, who has sponsored similar legislation in the past, asserts the measure will ensure a “fair and equitable application of labor laws in the United States.”
Union Corruption Update last covered this issue in January. The point of reference was a new report by the U.S. Chamber of Commerce titled, “The Trouble with the Truth: Specialty Healthcare and the Spread of Micro-Unions.” Specialty Healthcare refers to a National Labor Relations Board ruling [357 NLRB 83 (2011)] in August 2011 authorizing unions to create miniature bargaining units within a workplace in hopes of raising the chances of conscripting reluctant employees. These “micro” unions, argued the monograph, represent a threat to worker liberty and the integrity of collective bargaining. The decision negated an earlier NLRB ruling, Park Manor Care Center [305 NLRB 872 (1991)], which concluded that the size of a bargaining unit must correspond to all employees who share a “community of interest.” Subsequent rulings, interpreting “community of interest” as broadly as possible, upheld this standard. This doctrine changed during the Obama years, when the pro-union faction on the NLRB gained a majority. And when the issue came up in Specialty Healthcare and Rehabilitation Center of Mobile, the board ruled on behalf of an affiliate of the United Steelworkers rather than the employer, constricting the definition of community of interest.
The decision was a green light for micro-unit organizing. Unions across a wide range of industries have been winning representation of fractional employee groups at workplaces ever since, knowing the NLRB will rule favorably on their behalf. Indeed, the board has done that in DTG Operations, Macy’s, Nestle Dreyer’s, First Aviation, T-Mobile, Bergdorf Goodman, Bread of Life (Panera) and Constellation. In effect, the board now sees the modern workplace more as an aggregation of small, fitfully overlapping workplaces than as a whole “wall to wall” entity. As a result, unions now have an inherent organizing advantage. Example: If only 40 employees at a 200-employee worksite want to be represented by a union at the outset of an organizing campaign, that union definitely has an uphill battle. But if those 40 employees belong to a 60-employee division at the worksite, and that division is likely to be considered a separate bargaining unit, suddenly the union’s prospects will look good. The 20 reluctant workers, though part of a large majority among all workers at the site, would be a vastly outnumbered minority within the context of the proposed unit. In effect, Specialty Healthcare amounts to forced unionism.
A number of people in Congress led by Sen. Johnny Isakson, R-Ga., want to fix this situation. The Representation Fairness Restoration Act, introduced on May 23 by Isakson and Rep. Francis Rooney, R-Fla., would end micro-unionism. Isakson explains: “I have introduced this legislation every Congress since the National Labor Relations Board decided to tip the scales in favor of unions rather than allowing employees and managers within an organization to negotiate to best meet the needs of customers and workers alike. Common sense would tell you, and now experience has shown, that ‘micro-unions’ are a mistake.” Rep. Rooney cites the impact of this practice on department store labor relations. “In one case, the NLRB ruled that perfume and cosmetics salespeople at Macy’s constituted their own ‘micro-union’ and could unionize alone,” noted Rooney. “Imagine the confusion and cost as stockers, cashiers, shoe and clothing departments form their own unions at Macy’s.”
Micro-bargaining treats the whole workplace as less than the sum of its parts. By dramatically shrinking the definition of “community of interest” between differing functions under the same roof, the National Labor Relations Board has given labor unions a blank check to boost their ranks. The Isakson-Rooney legislation, by overriding Specialty Healthcare, restores the more sensible, longstanding definition. In so doing, it would protect dissenting workers from being corralled into joining a union, especially in non-Right to Work states. Unions have a right to seek new members, but micro-bargaining should not be a method of achieving that end.