The U.S. Court of Appeals for the Sixth Circuit, in a recent
decision, approved the National Labor Relations Board's
("NLRB") application of its new "overwhelming
community of interest test" in bargaining unit determination
cases. The case, Specialty Healthcare and Rehab. Ctr. of
Mobile, 357 NLRB No. 83 (2011), involved the question of
whether a union could single out certified nurse assistants for
representation at a long-term care facility and no longer apply the
Board's bargaining unit determination standards for such
facilities as provided for in its previous decision in Park
Manor, 305 NLRB No. 135 (1991).
The Court of Appeals, in Specialty Healthcare, rejected
all of the employer's challenges to the Board's decision
and found that not only did the Board have considerable discretion
under the National Labor Relations Act ("NLRA") in
determining the appropriateness of voting units, but also that the
Board, in this case, did not substantially change prior law in the
unit determination area. The Court of Appeals also held that the
Board's decision in Specialty Healthcare did not
violate Section 9(c)(5) of the NLRA, which prohibits the approval
of bargaining units on an extent of organizing basis. The court
held that while the wording in Section 9(c)(5) is ambiguous, the
Board did provide a rationale for its unit determination finding
and did not simply defer to the unit being sought by the union. The
court also rejected the employer's arguments that the Board
should have engaged in rulemaking before making this change in its
voting unit determination standards.
The Specialty Healthcare decision and its affirmance by
the Sixth Circuit, unless or until the Supreme Court or other
circuit courts hold differently, establishes a new
"overwhelming community of interest test" to be used by
the Board and its Regional Directors in voting unit and bargaining
unit cases. Previously, the Board had applied its traditional
"community of interest test" in virtually all unit
determinations cases and only utilized the "overwhelming
community of interest test" in accretion cases wherein small
groups of unrepresented employees could be combined with
represented employees without a secret ballot election being held.
This standard will require an employer that attempts to add job
classifications or positions to a unit being petitioned for by a
union to establish that such additional employee complement has an
"overwhelming community of interest" with the
petitioned-for employees. This will be an exceedingly difficult
standard to meet, and, as noted below, employers to date have been
largely unsuccessful in meeting this standard.
The NLRB and its Regional Directors have applied the new
"overwhelming community of interest test," in one fashion
or another, in approximately 90 cases to date. In virtually all of
these decisions, the employer has not been successful in increasing
the size of the petitioned-for unit due to the application of this
new test. A sampling of these decisions include the
following:
DTG Operations, Inc., 357 NLRB No. 175
(2011). The Board found appropriate a unit of 31 rental
service agents and overturned a Regional Director decision that had
added additional employee positions to the petitioned-for unit. The
Board found that there was no overwhelming community of interest
for the additional employee positions and relied on evidence that
the petitioned-for employees worked separately from other employees
and performed distinct sales tasks with qualifications,
expectations, and consequences for failure to meet those
expectations that were not required of other employees.
Guide Dogs for the Blind, Inc., 359 NLRB No. 151
(2013). The Board affirmed the Regional Director's
finding that a unit consisting of canine welfare technicians and
instructors was appropriate and concluding that the employer had
not met its burden of demonstrating that other "dog
handling" employees shared an overwhelming community of
interest with the petitioned-for unit.
Henkel Corp., Reg. 32 No. 32-RC-108535 (Aug. 8,
2013). The Regional Director found that the petitioned-for
unit including all paste and film employees at a facility was
appropriate and rejected the employer's argument that an
appropriate unit should also include warehouse operators,
maintenance mechanics, lab technicians, and planners.
Copper River of Boiling Springs, LLC, Reg. 10 No.
10-RC-098046 (Mar. 7, 2013). The Regional Director found
that an appropriate unit consisted of servers, bartenders, and
hostesses and declined the employer's claim that cooks and
dishwashers should be included in the appropriate unit. According
to the Regional Director, the cooks and dishwashers had different
functions and job skills, rarely interacted or interchanged jobs
with other employees, performed work in a separate area, had
different supervisors, and were not subject to the tip-credit
scheme. Similar terms and conditions of employment, such as facts
that established that all employees wore similar uniforms, had the
same insurance options, took similar trainings, followed the same
handbooks, and used similar work schedules, were insufficient to
create an overwhelming community of interest.
Corliss Resources, Reg. 19 No. 19-RC-080317 (June
12, 2012) The Regional Director found that an appropriate
unit was composed of 29 dump truck drivers and rejected the
employer's claim that all 74 truck drivers, including concrete
mixer drivers, should constitute a unit. The Regional Director
reasoned that while all drivers shared the same skills, training,
and terms and conditions of employment, there was no overwhelming
community of interest because the departmental organization, job
functions, and supervision of the dump truck drivers were different
from that of the concrete mixer drivers, and the two job types had
little contact or interchange.
Bergdorf Goodman, Reg. 2 No. 02-RC-076954 (May 4,
2012) The Regional Director found that all women's
shoes associates in the 2nd Floor Designer Shoes Department
constituted an appropriate unit, despite the employer's claim
that the appropriate unit should comprise all store employees or at
least all selling associates at the store.
The NLRB's 2011 decision in Specialty Healthcare has
received substantial attention since it issued, and many analysts
have described it as one of the most important precedent-changing
decisions ever to be issued by the Board. There also have been
predictions that this decision will permit unions to gain entry
into non-union businesses through the successful organizing of
various small or "micro" bargaining units. While the
Specialty Healthcare decision certainly does open the door
for small or "micro" bargaining units, perhaps more
importantly, especially for large employers, it opens the door for
unions to obtain rulings from the NLRB that significant segments of
an employer's workforce can be "carved out," to form
a bargaining unit on an extent of organizing basis, and thereby
result in the fragmentation of segments of an employer's
operations. Indeed, partial unionization of otherwise integrated
departments or operations of an employer can not only create labor
disharmony but also lead to the potential for work stoppages,
protracted collective bargaining, and interference in an
employer's ability to expeditiously change, on a plant-wide or
department-wide basis, operational policies and procedures.
Employers that have union-free workforces, and those employers that
have partially unionized workforces, should pay particular
attention to the Board's new "overwhelming community of
interest test" and be prepared, in any contested voting unit
case, to develop very complete and thorough records in Board unit
determination hearings of the integration of their workforce with
respect to employee positions it desires to add to the
petitioned-for unit. Employers also should, to the extent possible,
establish commonality with respect to terms and conditions of
employment of its employees and utilize, whenever possible,
cross-training and transfer initiatives to be able to establish
that the various positions that make up its workforce have an
overwhelming community of interest with virtually no deviation,
from one position to another, with respect to terms and conditions
of employment.
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