By:  Bradford L. Livingston

The bargaining unit is central to labor relations.  After all, a union must bargain on behalf of someone, and exactly who that union organizes ─ which individual or multiple group(s) of employees, jobs, or departments; at which of an employer’s individual or multiple facilities; and even of which individual or multiple employer(s) ─ becomes the bargaining unit that the union represents.  And not surprisingly, employers and unions frequently disagree about a potential bargaining unit’s composition.

Traditionally, the National Labor Relations Board (the “NLRB”) has applied a “community of interest” standard in fulfilling its duty  to determine whether a proposed bargaining unit is appropriate, where it has balanced different factors such as: the similarity of pay, methods of computing pay, employee benefits, vacation schedules, hours of work, kinds of work performed, qualifications, skills, and training; the physical proximity of employees and frequency of contact and transfers; the functional integration of the firm; its supervisory and organizational structure, especially as it relates to setting and applying labor relations policies; any bargaining history; employee desires; and the extent of union organization within the firm.

In Specialty Healthcare and Rehabilitation Center of Mobile (“Specialty Healthcare”), 357 NLRB No. 83 (2011),  however, the Board dramatically changed course by creating a new standard under which a unit of “all employees performing the same job at a single facility” is presumptively appropriate as a general matter in all industries.  The NLRB further gave great weight to the unit sought by a union:

[W]e reiterate and clarify that, in cases in which a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.

Because there are inevitable distinctions among separate groups of employees, this decision encourages the proliferation of bargaining units at any workplace—each unit sought by a union is likely to share a community of interest bearing some distinction from workers performing a different (but related) job.

When coupled with other recent NLRB decisions and its expedited rulemaking to overhaul the union certification process, an overall scheme becomes apparent.  As dissenting NLRB Member Hayes noted:

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 organizing as the controlling factor in determining appropriate units.  Next, by proposing to revise the rules 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 recent independent efforts of unions to persuade employees to join or remain with them in large members have failed.

This decision was an extraordinary aid to union organizing; the question that employers should now be asking is whether a bargaining unit sought by a union will ever be inappropriate.