On August 15, 2013, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board's controversial Specialty Healthcare decision, which established a new standard for determining what constitutes an appropriate bargaining unit.
In the NLRB's 2011 Specialty Healthcare decision, a union petitioned for an election in a unit that consisted of certified nursing assistants (CNAs) but excluded other service and maintenance employees. The employer objected to the proposed unit on the grounds that the service and maintenance employees shared a "community of interest" with the CNAs and should therefore be included in the unit. In Specialty Healthcare, the NLRB rejected the employer's argument and adopted a new, heightened standard that requires an employer challenging a union's proposed unit to establish that "employees it seeks to include [in the unit] share an overwhelming community of interest with the petitioned for employees" in the proposed unit.
The Sixth Circuit recently upheld the NLRB's ruling, noting that the agency had acted within its discretion when it established the "overwhelming community of interest" standard. In upholding the NLRB's decision, the Court noted that the standard was not a material change in the law, and that it was not an entirely "new" standard as the NLRB had applied it before.
The Specialty Healthcare decision has serious implications for employers and stands to put them at a significant disadvantage in union representation proceedings. It essentially allows unions to organize "micro-unions" along narrow job classification lines and makes it difficult for employers to prevail in expanding the union's chosen unit. Accordingly, it is much easier for unions to seek to organize discrete groups of employees within a larger facility, petitioning for units of a smaller scale than the traditional "wall-to-wall" unit of all the employees. Such narrow unit definitions can significantly increase unions' ability to win representation elections, as it is much easier to organize smaller units of employees. These narrow unit definitions can also lead to multiple unions organizing at a single facility, thereby causing significant operational headaches for employers. Since the NLRB has not shied away from extending the Specialty Healthcare standard beyond the health care industry, the Sixth Circuit's affirmation of that standard stands to impact employers in all industries.
The Sixth Circuit's ruling may lead to an increase in union organizing efforts among separate and distinct groups of employees in the same facility and will bolster any such efforts that are already underway. To remain union free, it is increasingly important for employers to focus on positive employee relations and supervisory training.