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Beware the microunit: Court upholds NLRB’s bargaining unit standard

published in Oklahoma Employment Law Letter | December 1, 2013

By Natalie Ramsey

Recently, the U.S. 6th Circuit Court of Appeals upheld a controversial National Labor Relations Board (NLRB) decision that redefined the standard for determining appropriate bargaining units. In a nutshell, with the blessing of the judiciary, unions in a broad range of industries likely will be able to organize minority factions (or microunits) in a workplace, even though a majority of employees may oppose union representation.

Background

Under the well-settled precedent of the Park Manor decision, the NLRB historically has dealt with the standard for determining appropriate bargaining units in a pragmatic way. The Board looked at a broad set of factors to determine whether similarly situated employees in different job classifications shared a “community of interest” such that they should be included in a bargaining unit. Under the standard, the union’s choice of voters for an election unit wasn’t necessarily automatic. Rather, the approach resulted in unions prevailing in elections only when a majority of similarly situated employees supported union representation.

However, in Specialty Healthcare, a 3-1 decision issued in 2011, the NLRB turned its back on the inclusive Park Manor standard. Under the new standard, a proposed bargaining unit made up of employees in a single job classification may be deemed appropriate if the employees are “readily identifiable as a group” and share a “community of interest.”

Although an employer may challenge the appropriateness of the proposed bargaining unit, the burden is by no means light. Now, employers must show that an “overwhelming community of interest” exists between the proposed bargaining unit and the larger workforce. Thus, unless an employer can show that an “overwhelming community of interest” exists between the proposed bargaining unit and other employees, smaller, less inclusive microunits selected unilaterally by unions will likely be the norm.

6th Circuit’s decision

Recently, the Specialty Healthcare microunit model was upheld when the 6th Circuit rejected an employer’s argument that the “overwhelming community of interest” standard was inappropriate and that the changes to the standard were improper because they came about via adjudication rather than through the rulemaking process. As a result, the “overwhelming community of interest” test will likely be the rule unless the makeup of the NLRB changes significantly or the 6th Circuit’s decision is reversed by the U.S. Supreme Court.

Impact on Oklahoma employers

What does this decision mean for Oklahoma employers going forward? With the judiciary’s blessing, union attempts to organize so-called microunits will surely continue. Moreover, although some have argued that the new standard should be limited to the acute healthcare industry, the NLRB didn’t limit its decision. Indeed, the standard has already been put into practice in a number of industries, leaving employers across the board potentially vulnerable to minority factions.

Review your workforce structure in anticipation of defending against a fractured workforce fraught with microbargaining units. Consider using job descriptions, job titles, cross-training, and audits of your supervisory structure to create a strong community of interest among employees.