The scope of a bargaining unit is often a significant factor impacting unions’ success or failure in organizing campaigns.  The U.S. Court of Appeals for the Sixth Circuit gave unions a win last week when it upheld the Board’s controversial decision in Specialty Healthcare and Rehabilitation Center of Mobile (“Specialty Healthcare”), 357 NLRB No. 83 (2011).

 In Specialty Healthcare, the Board created a new standard finding that a unit of “all employees performing the same job at a single facility” is presumptively appropriate as a general matter and 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.” (See here for discussion of decision).  This standard gives great weight to the unit sought by a union and, as dissenting NLRB Member Hayes pointed out, “will in most instances encourage union organizing in units as small as possible…”

 In upholding the Board’s decision, the Sixth Circuit recognized that “Federal labor law gives the Board wide discretion to delineate the “bargaining unit,…” and that it must uphold the Board’s decision “unless the employer establishes that it is arbitrary, unreasonable or an abuse of discretion.” Finding that the Board had cogently explained the basis for its decision to adopt the “overwhelming-community-of-interest standard” and that the Board’s decision was supported by precedent and was not a “material change in the law,” the Sixth Circuit held that the Board had not abused its discretion.  The Sixth Circuit further held that the Board may exercise its discretion in announcing a new principle or following one of its already existing principles in adjudicating bargaining unit issues and need not go through the notice-and-comment rulemaking process in order to do so. 

 In light of this ruling, unions will likely be the beneficiaries of an increasing number of small units.  These smaller units will be easier to organize since unions will be able to effectively design the voting unit to include only employee groups with strong support for unionization.