Last Thursday, Sen. Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843), a bill that would effectively revoke the National Labor Relations Board’s recent decision in Specialty Healthcare, and establish criteria for determining an appropriate bargaining unit. In Specialty Healthcare, the Board determined a petitioned-for unit will be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. If an employer contends that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. Many have argued that this decision will result in much smaller “micro” bargaining units that are easier to organize and more difficult for employers to administratively manage.

To address this issue, the proposed legislation would mandate that prior to a representation election the Board must determine the appropriate bargaining unit. With the exception of acute health care facilities, such a unit must share a “sufficient” community of interest, as evidenced by the following factors: similarity of wages, benefits and working conditions; similarity of skills and training; centrality of management and common supervision; extent of interchange and frequency of contact between employees; integration of the work flow and interrelationship of the production process; the consistency of the unit with the employer’s organizational structure; similarity of job functions and work; and the bargaining history in the particular unit and the industry. The act further emphasizes that to avoid the proliferation of micro units, “employees shall not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”

In situations where it is proposed that more employees be added to an existing unit, however, the employer would be required to show that there exists an “overwhelming” community of interest between the additional employees and those in the existing unit, and that the additional employees “have little or no separate identity” from the established unit.

Last month, the House Committee on Education and the Workforce cleared the Workforce Democracy and Fairness Act (H.R. 3094), legislation that would accomplish the same end, as well as prevent the Board from pursuing its proposed changes to representation election procedures. This bill has not yet been presented to the full House for a vote.

Ilyse Wolens Schuman is a Shareholder at Littler & Mendelson LLP out of Washington, D.C. She can be reached at 202-423-2223 or ischuman@littler.com