New Republican-Majority NLRB Decisions Impacting Higher Ed

On December 15, the National Labor Relations Board (NLRB) issued an important ruling for higher education in PCC Structurals Inc. abandoning the Obama Board’s 2011 Specialty Healthcare decision, which allowed employees to organize in “micro units.” The PCC Structurals decision reinstated the previous standard that employees have to share an “overwhelming community of interests” to be an appropriate bargaining unit.

The NLRB said it would no longer apply the Specialty Healthcare decision when evaluating petitions for union representation, but it will evaluate individual cases, “taking into consideration the interests of employees both within and outside the petitioned-for unit, in light of the policies and purposes of the [National Labor Relations] Act.”

The Board also said that the Specialty Healthcare decision gave too much power to union organizers to decide which employees should be included in the bargaining unit and inappropriately allowed unions to gerrymander the workforce, only choosing the workers who wanted to organize — effectively disenfranchising other workers.

At the beginning of 2017, a regional director for the Board applied the now-reversed Specialty Healthcare decision to direct an election of teaching assistants in nine different and independent academic departments at Yale University. However, the Board’s PCC Structurals decision is already having an impact on graduate student organizing. On December 19, regional director Dennis Walsh, in directing that an election be held for a unit of graduate students at the University of Pennsylvania, ruled that “a unit limited to graduate student employees in the seven petitioned-for schools is not appropriate.” Referencing the Board’s decision overturning Specialty Healthcare, Walsh directed that students from the business and engineering schools — who were previously excluded — must also be included in the bargaining unit when elections are held next year.

The Board’s decision in PCC Structurals was the second major decision overturning rulings from the Democrat-majority Board under the Obama administration. The other decision in Hy-Brand Industrial Contractors reversed Browning-Ferris Industries, which altered the joint employer standard to include indirect or potential control over the essential terms and conditions of employment and reinstated the Board’s previous position that joint employer liability will be found where “there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine.”