In August 2011, the National Labor Relations Board (Board) issued its Specialty Healthcare decision, which set forth a new approach for determining what constitutes an appropriate bargaining unit in health care facilities and industries other than acute care hospitals.  Under that case, a two-step process applies in cases where the employer claims the smallest appropriate unit includes employees that were excluded from the union's sought-after unit.  To begin, the Board looks at "whether the petitioned-for unit is an appropriate bargaining unit by applying traditional community-of-interest principles." Then, "[i]f the petitioned-for unit satisfies that standard, the burden is on the employer to demonstrate that the additional employees it seeks to include share an overwhelming community of interest with the petitioned-for employees, such that there 'is no legitimate basis upon which to exclude certain employees from' the larger unit because the traditional community-of-interest factors 'overlap almost completely.'" 

Specialty Healthcare spoke specifically to health care employers, but as we informed you previously, the decision would most likely have a significant impact for employers in other industries as well.  Many believed that the Board would use this decision as an opportunity to change the rules on bargaining unit determinations dramatically, by allowing for much smaller units, on narrower job classification lines.  Many also believed those changes would lead to unions seeking to represent discrete groups of employees within a larger facility—as unions are substantially more effective in organizing smaller bargaining units—which could lead to multiple unions at one location.

Based on a Board decision released on January 6, it appears management's concerns about Speciality Healthcare were well-founded.  In DTG Operations, Inc., which dealt with a non-health care employer, the Board decided that car rental service agents constituted an appropriate bargaining unit without including other employees who worked at the same location.  The union sought to represent a unit of 31 rental service agents and lead rental service agents who worked for the employer's Dollar and Thrifty rental services at the Denver airport.  The employer claimed that the smallest appropriate unit was a "wall-to-wall" unit including all employees who worked at the location.  Such a unit would have included a number of employees who also had the title of "agents" but who performed different functions than the rental service agents.  The Region agreed and, because the union did not want an election among the larger group, it dismissed the union's election petition.

Board Chairman Pearce and Member Becker, applying Specialty Healthcare, reversed the Region's dismissal of the union's petition.  They said that, in this case, the Board found the employer's rental service agents "unmistakably share[d] a community of interest" with each other.  Then, the Board found other employees did not share an overwhelming community of interest with those sought by the union.  The Board admitted the rental service agents' work was similar in some ways to work performed by other employees but found them severable because they "work separately from other employees and perform distinct sales tasks with distinct qualifications, distinct expectations, and distinct consequences for the failure to meet those expectations."  The Board then remanded the case for an election in the sought-after unit.

Member Hayes dissented, stating the decision showed that the process of determining an appropriate unit for an election is now "the union's choice, and the likelihood is that most unions will choose to organize incrementally, petitioning for units of the smallest scale possible."  The days of traditional all-inclusive production and maintenance units, technical units, or service and maintenance units—much less wall-to-wall plant units—are numbered."

This decision demonstrates the Board's willingness to extend the Specialty Healthcare standard beyond the health care industry.  As Member Hayes' dissent notes, it also shows that unions will be able to seek to represent discrete groups of employees within a larger facility, which will improve unions' ability to win representation elections, could lead to multiple unions at one location and ultimately cause significant complications in employers' ability to operate their businesses.  Unions will most likely be emboldened by the Board's action, and it may spark an increase in union organizing among separate and distinct groups of employees.  To remain union-free, it is increasingly important for employers to focus on positive-employee relations and supervisory training.  If you have questions about this decision's impact on your business, or strategies to remain union-free, please contact the authors or other of Faegre Baker Daniels' labor lawyers.