On August 15, 2013, the U.S. Court of Appeals for the Sixth Circuit affirmed the National Labor Relations Board’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011), and in doing so, strengthened a union’s ability to organize workers.
In 1991, the NLRB held in Park Manor Care Health Center, 305 NLRB 135 (1991), that the scope of a bargaining unit should be determined using traditional community of interest factors to select the most “pragmatic” unit with an “empirical community of interest.” This standard was critical to employers and employees as it allowed all similarly situated employees the opportunity to vote rather than allowing the union to cherry-pick smaller organizations.
The NLRB’s decision in Specialty Healthcare decision overruled Park Manor, and the Sixth Circuit’s decision affirms this radical change of course. Under the new standard, any petitioned-for unit will be appropriate if it has some community of interest even though there may be a more significant community of interest for a larger group. Once the union has established some level of community of interest, the burden is now on the employer to show an “overwhelming community of interest” in the larger unit before the NLRB will reject the union’s requested smaller unit. This undeniably gives the union the advantage insofar as the union may now petition for a unit to the extent that it has organized the workers. The result could be micro-unions made up of small subsets of an employee population (e.g., one production line or cell of a large factory, the bakery at a grocery store, etc.).
What is Wrong With a Micro-union?
Micro-unions come with significant dangers including:
- It is easier for a union to get its foot in the door with smaller units because it can cherry-pick the groups that are pro-union and exclude the anti-union employees.
- Once a micro-union is in your company, the unionized employees will spend considerable time trying to persuade additional employees from other organizations to join the union.
- It is possible that two different unions could organize two different sets of micro-units within the same workspace.
- Whether there is one union or multiple unions at the employer, jurisdictional disputes are a certainty as the workplace inevitably requires employees from different organizations to pitch in to accomplish common goals, but if a union is organized in one of the areas, grievances will inevitably arise alleging that the work should be or should not be performed by someone in a particular bargaining unit.
- Collective bargaining agreements often bring different procedures or rules, and it can be difficult or impossible for a single non-human-resources supervisor to keep up with all of the rules, but will be twice as difficult if the supervisor is required to remember multiple sets of rules for the union (or unions) and non-union employees.
The NLRB’s original decision was announced in 2011. Since that decision, there has not been a flurry of micro-union organizing efforts. There could be several reasons for this:
- Micro-unions are, at least initially, less profitable because the union does not get as many dues paying members in a micro-union as it would in a larger union.
- Unions were slow to seize the moment until the decision was confirmed. Over the past few years, there has been a significant amount of NLRB confusion, and unions did not want to start down a path only to have it reversed.
- It takes time for a micro-union strategy to become the norm – unions are creatures of habit and are slow to change. Indeed, that is part of the reason employers do not like unions in the workplace, so it may take a while before this new tool becomes commonplace.
What Should I Do Now?
As always, the best union avoidance tools are strong supervisors and interaction with employees. Unions (whether micro- or otherwise) are not necessary when good supervision exists. But, a good TARP can protect your company from the rain of union organizing. TARP stands for Training, Assessments, React quickly and Proactive. Training must take place early and often. You will have less time to react and less ability to fend off a union organizing campaign once it starts, so you must train your supervisors to be engaged and to identify signs of union activity. Assessments of union vulnerability must be conducted more often and be performed with more precision to identify areas where micro-unions are a possibility. While quick reactions have always been critical to a successful union avoidance campaign, there will be even less time to remind employees in small groups of the benefits of working in a union-free workplace. You must be proactive. You cannot wait for the signs of union organizing or it could be too late. You should consider engaging in union avoidance efforts early and often to avoid exposure to micro-unions