On the heels of Michael J. O’Brien’s blog post below on the growing numbers of over-connected workers celebrating Labor Day this coming Monday, I thought it would also be fitting to call attention to the current state of flux — for lack of a better word — involving labor unions as well.
Indeed, there is much to keep your eyes on — this Labor Day and beyond. Here are three developments I thought worthiest, from most recent to least, though they’re all pretty recent and they seem to keep coming:
1) On Aug. 15, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, affirming that the NLRB has broad discretion to determine appropriate bargaining units for union representation elections, including narrow so-called “micro-units.” (Paul Salvatore, our legal columnist, mentioned such micro-units in this recent column.)
This alert from Littler lays it out pretty completely and spells out toward the end what should be of concern to employers:
Targeting smaller groups within an employer’s workforce provides labor unions with a great deal of flexibility. Such groups may be more susceptible to organizing activity than the larger, traditional employee complement that would have been included in a proposed bargaining unit under the [NLRB's] prior standard. While it is expected that the board and courts will continue to refine the application of Specialty Healthcare in the coming years, employers should be aware that a finding of an appropriate “micro-unit” will be very difficult to avoid in most employer operations.
2) On Aug. 13, U.S. District Court Judge Benjamin H. Settle entered a ruling in favor of an employer based, in part, on what he deemed to be an invalid appointment of the NLRB’s acting general counsel, Rafe Solomon. Specifically, he granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating its employees for engaging in protected activity.
In its motion to dismiss, the employer argued (1) only the NLRB has the authority, after issuing an unfair labor practice complaint, to petition a federal court for injunctive relief, and the NLRB did not at that time have a quorum of three lawfully appointed members; and (2) the NLRB could not lawfully delegate its authority to Solomon because Solomon’s own appointment was also invalid.
This rundown, also from Littler, spells out what the impact and ramifications of this may be, including the fact that the decision “will likely prompt a strong response among employers currently facing unfair labor-practice litigation before the NLRB. The validity, or lack thereof, of Solomon’s appointment will provide an additional affirmative defense for employers.”
3) Lastly, we’re all keeping our eyes on the development I blogged about last month, involving the growing swell of discontent unions seems to be having over the Affordable Care Act. Specifically, three sizeable unions — the Teamsters, UNITE-HERE and the United Food and Commercial Workers — sent a joint letter in mid-July to Democratic congressional leaders blasting the very same healthcare-reform plan they once lauded.
The main gripe — directed to Senate Majority Leader Harry Reid and Minority House Leader Nancy Pelosi by Teamsters President James P. Hoffa, UFCW International President Joseph Hansen and UNITE-HERE President Donald “D” Taylor — is that no one on Capitol Hill seems to be listening to the unions’ fears that the massive reform bill could put an end to nonprofit health-insurance plans “like the ones in which most of our members participate,” as the letter states.
Again, much to mull and keep abreast of. We’ll be addressing these and many more aspects of the state of unions today in an upcoming news analysis on our HREOnline™ website, so watch for that as well.
And Happy (or at least a highly interesting) Labor Day!