In its 2011 Specialty Healthcare decision, the National Labor Relations Board revised the test it applies in determining whether a union’s petitioned-for unit is appropriate. In Specialty Healthcare, the NLRB explained that where a union’s petitioned-for unit is readily identifiable as a group and shares a community of interest (common terms and conditions of employment), an employer who seeks a larger unit must demonstrate an “overwhelming” community of interest between the included and excluded employees. As we have reported in the April 2013 FR Alert and July 2014 FR Alert, employers have struggled to meet the “overwhelming” community of interest standard.

Volkswagen found out last week how difficult it is for an employer to meet the Specialty Healthcare standard. On November 18, an NLRB Regional Director directed an election in a unit sought by the United Auto Workers consisting solely of skilled maintenance employees and team leaders at the Volkswagen plant in Chattanooga, Tennessee. The Regional Director first determined that Volkswagen’s skilled maintenance employees and team leaders comprised “an appropriate unit” because they were readily identifiable as a group and shared common terms and conditions of employment. The burden then fell to Volkswagen to prove that the skilled maintenance group shared an “overwhelming community of interest” with and should be included in a larger group with all of Volkswagen’s production employees.

Volkswagen put on evidence that established some level of shared terms and conditions of employment between the skilled maintenance employees and the production employees including many common benefits and policies, common supervision at the department level, a common performance bonus program, and regular contact and communication among the two groups. Indeed, the Regional Director acknowledged that Volkswagen’s evidence may have been enough to establish that the combined unit was “an appropriate unit.” Nevertheless, the Regional Director rejected Volkswagen’s effort to combine the two groups because the evidence did not establish that the maintenance employees and the production employees shared an “overwhelming community of interest.”

The composition of the unit is a critical factor in the outcome of a union election. Specialty Healthcare’s“overwhelming community of interests” test allows a union to organize the smallest subset of employees in which it believes it can secure majority support. In 2014, the UAW lost an NLRB-conducted election at the Volkswagen plant in a voting unit that included, by agreement of the parties, production and maintenance employees. After losing an election in the bigger unit, the UAW presumably believes the outcome will be different in a smaller unit. Specialty Healthcare provides the means by which the UAW or any other union may carve up an employer’s workplace to maximize the chance of success.