With the new make-up of the NLRB resulting in three Republicans sitting on the Board there is no doubt in my mind that the Specialty Healthcare standard in determining appropriate bargaining units will be one of the first of the “new standards” to disappear.
For those of us who have practiced before the NLRB for many years, the ruling in this case made absolutely no sense given the history of unit determination policy under the Act. This is especially so in healthcare settings where Congress dictated that there should not be a proliferation of bargaining units. Indeed, the NLRB has gone to extremes in the application of Specialty Healthcare, as noted in the 2016 decision of Exemplar, Inc., Case 20-RC-149999, in which the NLRB approved the Union’s desire to include janitors at 2 separate sites, in the same bargaining unit, despite the fact there was no evidence of functional integration or employee interchange between the facilities, contrary to long-standing multi-facility analysis. Again, such an approach simply undermines a long history regarding the application of the law in this area, for no legitimate reason. The only reason that this doctrine is in existence is that it made organizing easier for labor organizations. But making organizing easier for Unions is not the purpose and policy behind the NLRA. It is about employee free choice and what employees desire in the workplace, not what Unions desire.
So, I am extremely hopeful that this doctrine will soon disappear as it has done nothing to enhance the labor environment.