Editors Note: This is the latest installment in the Labor & Employment Report’s regular feature “Specialty Healthcare Watch.”   In Speciality Healthcare, the NLRB redefined the test for what constitutes an appropriate bargaining unit.   The Labor & Employment Report is analyzing post-Speciality Healthcare cases to give employers insights on how to apply that holding.   For more information on this case and feature, click here.

In Part One of my Northrop Grumman Shipbuilding analysis, I reviewed the Board’s decision and reasoning.   Today, I will go over Brian Hayes’ dissent.

Member Hayes has had the opportunity to write a lot of dissenting opinions while at the NLRB.   Not to detract from any of his other dissents, but I found the one in Northrop Grumman particularly persuasive.   If you remember from my breakdown of the majority’s opinion, the key is whether the traditional community-of-interest test excludes the larger unit.  Here, Member Hayes goes through how the larger group of technicals and the smaller petition-for group meet the community-of-interest factors.  He compares the RCTs to the other technical employees and finds many similiarities such as:

  • They all work at the same facility
  • They all share the same salary structure and personnel policies
  • They all enjoy the same benefits
  • They all share break facilities
  • Their duties are “functionally integrated” with those of other technical employees

Hayes expounds on this “functional integration” point later in his dissent, finding that the RCTs worked with other technicans at many locations to ensure the safety of the employees at the worksite, a function that was “essential to enable other technicans to perform their work and to fulfull the Employer’s mission.” The integration point is key —  if the positions of the petitioned-for unit and the other technical employees were functionally integrated, it would be hard to argue that the other two bases for exlcuding the larger unit — the training and lack of work contacts — would prevail.   One has to believe that the “job function” point was very close, even for the majority.   But the fact that Hayes’ ultimately loses this argument, shows, again, for employers that in order to prevail in a post Specialty Healthcare case, they must have pretty close to an air-tight argument as to why the traditional community-of-interest test is met between the larger unit and the petitioned-for unit.  If the union can point to any reasons why it is not, then the smaller unit will prevail.

While he lost the battle again, Hayes’ opinion includes highly persuasive dicta about why Specialty Healthcare is such a misguided NLRB decision.   Hayes writes:

The newly-fashioned Speciality Healthcare standard, in contrast, gives the petitioner’s views on unit scope nearly dispositive weight, thereby negating the role Congress envisioned for the Board in determining appropriate bargaining units. In many, if not most instances, this new standard will encourage petitioning for small, single classification and/or single department groups of employees.  Union electoral success, even if at the same rate as in the recent past, will lead to the balkanization of an employer’s unionized workforce, creating an environment of constant negotiation and tension resulting from competing demands of the representatives of numerous micro-units. Such an outcome cannot be reconciled with the statutory goal of facilitating labor relations stability.

Consider the Employer in this case. Its 8500 production and maintenance employees, despite placement in different departments, have been represented by the Steelworkers in a single plantwide unit for more than 30 years. How many separate units would have existed, and with what consequences for productive collective bargaining relations, had the Speciality Healthcare standard been in effect? Further, in the wake of this decision, how many separate technical bargaining units will eventuate among 2400 employees?

A good question, indeed.