September 13, 2011
NLRB Makes Union Organizing Easier
Practice Group:
In a decision dated August 26, 2011, and released August 30, 2011, the Obama-appointed majority of
the National Labor Relations Board (the “Board”) signed off on a decision making it far easier for
unions to organize small groups of employees. Specialty Healthcare & Rehab. Ctr., 357 NLRB
No. 83. The sole Republican Board member, Brian Hayes, dissented.
Labor and
Employment
Executive Summary
Our decision adheres to well-established principles of bargaining-unit determination, reflected
in the language of the Act and decades of Board and judicial precedent. The changes in the
law made here are relatively modest ones. (Majority Opinion)
This is perhaps the most glaring example in cases decided recently of my colleagues initiating
a purported empirical inquiry into the effects of extant precedent, only to end by overruling
that precedent in the absence of any factual justification, for the purely ideological purpose of
reversing the decades-old decline in union density in the private American work force.
(Dissenting Opinion)
Background
In a 1991 decision, Park Manor Care Center, the Board had decided that in determining appropriate
bargaining units in non-acute (excluding hospitals) health care employers, the Board would take a
somewhat more restrictive view than the traditional community of interest test used with nonhealthcare employers. In the Specialty case, the Board was deciding an appeal from a decision which
approved a bargaining unit consisting of 53 certified nursing assistants in a nursing home and
rehabilitation center. The employer argued the Regional Director had misapplied Park Manor and
that the appropriate unit should be larger, and should include an additional 33 maintenance, clerical,
and dietary employees. The Board majority used the appeal as an opportunity to review and alter the
unit determination criteria not only in non-acute healthcare settings, but also in representation
proceedings for all categories of employers.
Majority Decision
The majority first concluded that whatever reasons may have justified the Park Manor decision, the
passage of time had changed the industry and the reasons no longer existed for having separate rules
for the non-acute healthcare industry.
The majority then continued by “clarifying” what the majority claimed was the traditional
“community of interest” test that had historically been used to determine an appropriate bargaining
unit in which to hold an election. The majority noted that absent an objection from the employer, the
unit requested by the union is deemed appropriate. Moreover, the test is not whether the requested
unit is the most appropriate but rather whether the unit is for whatever reason not appropriate. The
Board cannot approve a unit solely because it is the unit requested by the union, but that preference
may be considered if the requested unit is otherwise appropriate. A group of employees constitutes an
appropriate unit if its members have a “community of interest” based upon criteria such as skills,
duties, wages and benefits, supervision, interchange with other employees, and the employer’s
NLRB Makes Union Organizing Easier
organizational structure. The small size of a requested unit is not a relevant consideration if the unit is
otherwise appropriate.
The majority concluded by articulating a test to determine whether a larger group of employees has
such a strong community of interest that the larger group largely overlaps the smaller in community of
interest and there is therefore no legitimate reason to exclude any members of the larger group from
the proposed bargaining unit. The burden of proof for the larger unit is placed upon the objecting
employer. The majority described its clarification as follows:
We therefore take this opportunity to make clear that, when employees or a labor organization
petition for an election in a unit of employees who are readily identifiable as a group (based
on job classifications, departments, functions, work locations, skills, or similar factors), and
the Board finds that the employees in the group share a community of interest after
considering the traditional criteria, the Board will find the petitioned-for unit to be an
appropriate unit, despite a contention that employees in the unit could be placed in a larger
unit which would also be appropriate or even more appropriate, unless the party so
contending demonstrates that employees in the larger unit share an overwhelming community
of interest with those in the petitioned-for unit.
Dissent
Member Hayes first blasted the majority for seizing the opportunity to both overturn Park Manor and
then to articulate a new unit determination standard when the parties to the proceedings had simply
argued on much narrower grounds whether Park Manor had been misapplied on the facts. He further
contended that any such sweeping action should be taken under formal rulemaking procedures and not
as a part of litigation. Next, he argued that Park Manor was correctly decided, that the passage of
time had not undermined its reasoning, and that it should not be overruled. Finally, he argued that
despite the majority’s references to accepted unit determination principles, the majority’s
overwhelming community of interest test was in fact a substantial change in the law. The new test is
essentially the “same job, same place” test that a Board majority in an earlier decision had rejected as
too narrow. This new test overturns the former requirement that the interests of the requested unit be
sufficiently distinct from a broader group to justify a separate unit. He concluded:
It is not difficult to perceive my colleagues’ overall plan here. First, in this case, they define
the test of an appropriate unit by looking only at whether a group of employees share a
community of interest among themselves and make it virtually impossible for a party
opposing this unit to prove that any excluded employees should be included. This will in
most instances encourage union organizing in units as small as possible, in tension with, if not
actually conflicting with, the statutory prohibition in Section 9(c)(5) against extent of
organization as the controlling factor in determining appropriate units. Next, by proposing to
revise the rules [in a separate pending procedure] governing the conduct of representation
elections to expedite elections and limit evidentiary hearings and the right to Board review,
the majority seeks to make it virtually impossible for an employer to oppose the organizing
effort either by campaign persuasion or through Board litigation.
This initiative puts our agency beyond the pale of reasoned adjudication. It enlists the
Board’s Regional Offices, who will have little option but to find almost any petitioned-for
unit appropriate, in a campaign to support union organization where the recent independent
efforts of unions to persuade employees to join or remain with them in large numbers have
failed. I fully recognize that partisan shifts in Board membership are most often followed by
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NLRB Makes Union Organizing Easier
shifts in the law that favor unions or employers, but I do not think it appropriate to bend the
law or the Agency’s service so far as my colleagues propose to do.
Conclusion
There is no doubt that this is a pro-union decision. The effects are: (1) virtual elimination of an
employer’s ability to object to a requested unit; (2) the ability of a union to organize very small groups
of employees, often consisting of a single job classification; (3) a potential fragmentation of an
employer’s workforce; and (4) no criteria for measuring “overwhelming.”
The effect will be similar to that which has long existed under Board precedent which has allowed
skilled craftsmen such as electricians, carpenters, etc., to have their own separate individual craft
bargaining unit.
An employer’s only defense against fragmented unit exposure is to homogenize the workforce. In
determining whether a community of interest exists, the Board among other factors considers the
employer’s organizational structure, skills and training and functions of the employees, supervision,
overlap and interchange with other employee groups, and terms and conditions of employment. The
larger the employee groups which have these factors in common, the better will be the arguments to
support an “overwhelming community of interest” with the smaller petitioned-for unit. Unfortunately,
efforts in this direction may be counter-productive to other goals of management and efficiency.
There is no truly effective antidote to the Board’s latest effort to spur union organizers.
Author:
Hayes C. Stover
hayes.stover@klgates.com
+1.412.355.6476
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