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Employers potentially threatened by “micro-unions”



By Lee Williams
Statutory framework
The National Labor Relations Act (NLRA) allows private sector employees to unionize and form a “bargaining unit” which must be approved by the NLRB.  Generally speaking, the NLRB has broad discretion in determining what constitutes an appropriate bargaining unit.  To have formed an appropriate bargaining unit, the NLRB must find employees wishing to unionize share a “community of interest” which justifies their desire to bargain collectively.  The NLRB addresses the following five factors in making such a decision:  (1) the similarity in skills, interests, duties, and working conditions; (2) functional integration of the workplace, including interchange and contact among the employees; (3) the employer’s organization and supervisory structure; (4) the bargaining structure; and, (5) the extent of union organization among the employees. In the Sixth Circuit’s case, the major point of contention was whether the NLRB had appropriately applied the community of interest test or if it had abused its discretion by creating a new version of the test.

Case history
The case arose from a nursing home employing a variety of individuals of varying skill levels.  The nursing home employees were divided into eight distinct departments, all but one of which reported to the nursing director.  The facility’s Certified Nursing Assistants (CNAs) petitioned the NLRB to form a bargaining unit that excluded other employees of the nursing home, including Licensed Practical Nurses, Registered Nurses, and a variety of support staff.  The CNAs’ jobs consisted of helping residents with daily functions, such as grooming, oral hygiene, bathing and dressing, and incontinence care.  The CNAs were supervised by the Licensed Practical Nurses, who were in turn supervised by the Registered Nurses.  

The NLRB determined the proposed bargaining unit possessed the necessary community of interest and allowed the CAN members of the unit to vote on union representation.  The union vote was subsequently passed by the CNAs.  However, the nursing home refused to negotiate with the newly formed union in order to seek review of the NLRB’s decision from the Sixth Circuit.  The nursing home posed three main arguments: (1) the NLRB had changed its approach in making such decisions; (2) the NLRB failed to “reiterate and clarify” the law by adopting a new view of the community of interest test; and, (3) the new rule violated section 9(c)(5) of the NLRA, making it impossible for an employer to challenge bargaining units proposed by employees.

The Sixth Circuit’s ruling
The Sixth Circuit rejected the first argument posed by the nursing home, explaining agencies like the NLRB have wide discretion in determining what approach to take in deciding whether there is a community of interest.  The NLRB is permitted to alter or completely depart from its prior precedents so long as the departure is adequately explained in its opinion.  Therefore, the NLRB had not abused its discretion by applying a different version of the community of interest test.

The nursing home’s second argument focused on the NLRB’s failure to use consistent wording in describing the different version of the community of interest test.  The nursing home asserted the NLRB had not articulated a clear standard to be upheld under the NLRA.  The Sixth Circuit dismissed the argument, again relying on the NLRB’s wide discretion in determining whether a community of interest exists and finding the NLRB had in fact used its opinion to further clarify its views on the NLRA’s community of interest test.

Finally, the nursing home argued the test articulated by the NLRB rendered the union’s initial choice of individuals to create the bargaining unit impervious to attack.  Because the new test required employers to disprove the community of interest presumptively established by its employees, the nursing home argued, the new test was too stringent on employers and thereby violated section 9(c)(5) of the Act.  The Sixth Circuit disagreed section 9(c)(5) prohibited the NLRB from fashioning a more stringent standard; instead, the court determined section 9(c)(5) merely prevented the NLRB from allowing unionization on the sole basis of workers wanting to organize a union.  Thus, because the NLRB had used some version of the community of interest test in its decision, which was adequately explained, it had not violated section 9(c)(5).

Ramifications for employers
The Sixth Circuit’s condoning of micro-unionization is a negative outcome for employers.  Based on this ruling, employers should be careful not to over-classify their work force.  Such a course of action could theoretically force the employer to deal with the disruptive effect of multiple bargaining units all under the same roof.  To combat this situation, employers might consider cross-training programs or having the employees of various departments report to the same supervisor.

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