Monday, October 31, 2016 - 12:15am
On August 30, 2011, the National Labor Relations Board (NLRB or Board) issued a 3-1 decision in a case called Specialty Healthcare and Rehabilitation Center of Mobile. This controversial ruling created a new standard for determining the composition of bargaining units suitable for a union certification election.
Using the new criteria established in Specialty Healthcare, unions can form very small “micro” bargaining units that exclude employees who, under previous law, would likely have been included. This outcome was effectuated by the “overwhelming community of interest” test articulated in the decision, which has the practical effect of making it nearly impossible for an employer to include additional employees into a proposed “micro” bargaining unit suggested by a union.
In practice, the Specialty Healthcare decision means that the NLRB will approve almost any proposed bargaining unit a union recommends, regardless of how small or fragmented. Many practitioners of labor law, including the dissent in the case, have argued that the Board’s ruling effectively allows unions to petition for bargaining units that reflect little more than the extent to which they have already recruited supportive employees, in violation of Section 9(c)(5) of the National Labor Relations Act (NLRA or Act).
This has real world implications for employers and workers because a union can populate a prospective bargaining unit with those more inclined to accept representation and thus increase the odds that it will win the election...