The DC Circuit Court, in its August 11th decision in Rhino Northwest, LLC v NLRB has found that the NLRB’s 2011 Specialty Healthcare decision revisiting the Board’s standards for determining whether a bargaining unit a union seeks to represent is appropriate, where the employer claims in excludes other classifications of employees who share a community of interest with the petitioned for employees, is supported by the National Labor Relations Act and that the “overwhelming community of interest” standard that the Board adopted in that case is entitled to deference and should be followed.

The Specialty Healthcare Holding

The NLRB’s 2011 Specialty Healthcare decision is frequently referred to as the “mircro-unit” case. In Specialty Healthcare, the Board held that for an employer to establish that a unit is not appropriate and must include other classifications, the employer must prove the petitioned for unit is “truly inappropriate” and that the additional classifications the employer contends must be included in the unit share “an overwhelming community of interest” with the petitioned for classifications. Many saw this as a contradiction to the long standing proposition that the extent of organizing or support could not be the basis for finding a group of employees to be an appropriate unit and a results driven decision by the Obama Board, intended to allow unions to gain footholds within employers’ workforces by achieving bargaining rights for small pockets of workers.

The Facts in Rhino Rigging

In Rhino, which is a concert equipment setup company, a local of IATSE, a union representing stagehands and theatrical professions, petitioned for an election in a group of “riggers” employed by the company at a location in Washington State. The employer argued that a unit of just riggers, employees who use motors to hoist and position overhead equipment at concerts and theatrical events, was not an appropriate unit, and that the “overwhelming community of interest” standard adopted by the Board in Specialty Healthcare was inconsistent with the National Labor Relations Act (NLRA or Act”) and that in any case, that the riggers shared an overwhelming community of interest with the other classifications they worked with– camera, lighting, and forklift workers – and that a unit composed only of riggers was “truly inappropriate.” The Regional Director disagreed and directed an election in the rigger unit, the union won the election, and Rhino refused to bargain, in order to test the certification and, ultimately have its arguments considered by the D.C. Circuit.

The DC Circuit’s Rhino Rigging Decision

In short, the DC Circuit rejected all of Rhino Riggings’ arguments, finding that “Because a legitimate basis exists for excluding non-riggers from the bargaining unit,” it would sustain the Board’s order, in which it held that the company was obligated to bargain with the union for the unit of riggers.

As the Court pointed out, under the Board’s unit determination case law, “two considerations determine the prima facie appropriateness of a proposed unit.”

First, the employees must be “readily identifiable as a group” based on factors such as “job classifications, departments, functions work locations [or] skills. Second, the petitioned-for employees must share a “community of interest.” The Board “weigh[s] all relevant factors on a case-by-case basis” to determine whether a set of employees are sufficiently alike to constitute an appropriate bargaining unit.

Noting that there can in many circumstances be more than one appropriate bargaining unit, the Court reaffirmed that a unit need not be the most appropriate unit, and that under the Board’s overwhelming community of interest standard, for an employer to successfully challenge a petition seeking a unit it considers “underinclusive,” it must demonstrated that the proposed unit is “truly inappropriate” because the excluded employees share an overwhelming community of interest under the standard adopted in Specialty Healthcare.

The Court rejected Rhino’s argument that the “overwhelming community of interest” standard “runs afoul of the Act,” and its contention that even under that standard, the riggers shared an overwhelming community of interest with the other classifications.

What Happens Next?

With the DC Circuit’s decision, a total of eight Circuit Courts have rejected claims that the Board exceeded its authority in Specialty Healthcare and that the standards adopted in it are not supported by the Act.

For employers that were holding out hope that the DC Circuit was going to turn the tide on Specialty Healthcare and reject or redefine the “overwhelming community of interest” standard, the Rhino decision is a setback. It is certainly possible that a Court in another circuit which has not yet passed on Specialty Healthcare could still find that the test is not supported by the Act.

That said, at this point, the most likely way that change will come will be from the Board itself, once a Republican majority is in place, which should be this year. On May 10, NLRB Chairman Miscimarra issued a dissent in Cristal USA, Inc., in which he explicitly articulated his belief that “Specialty Healthcare was wrongly decided.” He went on to note that the unit in certified in Cristal was one he did not believe was an appropriate unit, and that this was concerning to him because it “promotes instability by creating a fractured or fragmented unit.”

As the Board moves to a new Republican majority, there is every reason to believe that the holdings in Specialty Healthcare will be reexamined from the point of view articulated in the Chairman’s dissent in Cristal and other cases.