By Nelson Cary and Lauren Sanders
In the final days of Chairman Philip Miscimarra’s (R) term, we have seen a flurry of decisions that reverse the outcome of cases decided during the Obama Board years. Friday, the last day of Chairman Miscimarra’s term, was no different. In the NLRB majority’s sights this time was the union-friendly Specialty Healthcare decision that made it easier for unions to organize small groups of employees. This time, however, the NLRB abandoned the “overwhelming community of interest” test and returned to the “traditional test” for determining whether a proposed bargaining unit is appropriate.
As we previously wrote, under the Specialty Healthcare decision, a proposed bargaining unit was appropriate if the group was readily identifiable and the NLRB found that the employees shared a “community of interest.” When the employer argued that the proposed bargaining unit inappropriately excluded certain employees, the employer had to show that the excluded employees shared an “overwhelming community of interest” with the employees in the proposed unit. This decision allowed “micro units” within larger groups of employees to vote on union representation without seeking input from the other employees.
On Friday, the NLRB determined that Specialty Healthcare was “fundamentally flawed” and returned to the “traditional” test for determining whether a proposed bargaining unit is appropriate. This traditional test requires the NLRB to assess multiple factors to determine the appropriateness of the bargaining unit:
- Are organized into a separate department;
- Have distinct skills and training;
- Have distinct job functions and perform distinct work;
- Are functionally integrated with the other employees;
- Have frequent contact with other employees;
- Interchange with other employees;
- Have distinct terms and conditions of employment; and
- Are separately supervised.
Ultimately, the NLRB must determine that the interests of the excluded employees are sufficiently distinct from the interests of the included employees to make the proposed group an appropriate bargaining unit. At no point does the party proposing a different bargaining unit – usually the employer – need to show that excluded employees share an “overwhelming community of interest” with the employees in the proposed unit.
The dissenters, Board Members Pearce (D) and McFerran (D), argued that the majority’s decision was “radical” and will “frustrate employees’ rights to self-organization and needlessly delay resolution of questions concerning representation.”
Specialty Healthcare had generated significant angst among labor professionals on the management side. Organizing several small groups of employees in the same location can create difficult operational issues and make organizing easier for unions. The NLRB’s recent decision should, therefore, come as welcome news for employers.
On the other hand, the NLRB was very careful to point out two things it is not holding. First, the NLRB’s decision does not require “wall-to-wall” bargaining units at any particular location. Second, the NLRB is not abandoning its long-held position that the community of interest analysis is designed to determine “an” appropriate bargaining unit not “the” most appropriate bargaining unit. Thus, even under the NLRB’s ruling Friday, there may still be situations in which organizing in a subset of the total workforce will be permitted.