Every year since 2011, Sen. Johnny Isakson, R-Georgia, has introduced the same bill … and every year since 2011, the bill has failed to muster the necessary support to become law. On May 24, Sen. Isakson again reintroduced his bill, called the Representation Fairness Restoration Act. Will this bill finally succeed, or will it suffer the same fate as in prior years? The answer to that question requires us to travel back to Aug. 26, 2011. On that day, the National Labor Relations Board (NLRB) published a precedent-setting order regarding Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). The decision, which dealt specifically with health care settings, allowed a unit of certified nursing assistants (CNA) to comprise a standalone bargaining unit for purposes of unionizing. The board thus adopted a controversial new standard for determining appropriate bargaining units and opened the door to micro-unit bargaining in all industries.
As a result of the board’s ruling in Specialty Healthcare, micro-units have been surfacing in various industries, replacing at times the historical “wall-to-wall” bargaining unit. Under this new standard, a union’s petitioned-for unit only need consist of a “clearly identifiable” group of employees for the board to presume that the unit is appropriate. The burden on the employer to defeat this presumption is quite high, as employers must demonstrate that employees in a proposed larger unit share an “overwhelming” community of interest with those in the proposed micro-unit. For employers, this decision meant a challenging expansion of potential bargaining units.
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