In our September 6, 2011 update, our article entitled, “The NLRB Continues Its March to the Left”  made a short and general mention of a very recent Board ruling that bears some additional discussion.

The NLRB’s ruling came in a case called Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83. That case involved the issue of what particular group or subgroup of a company’s employees is a proper group for purposes of being organized by a union, and what legal standard applies to any challenge by the employer to the appropriateness of that subgroup as a bargaining unit. In the past, if faced with a small proposed group in which it appears certain that the small group will vote in favor of union representation, employers typically have argued that the more appropriate group would be the larger group of its hourly employees at that facility. In those cases, the employer’s expectation is that the union will not have majority support of the broader group.

However that approach is now very difficult. The Board’s decision in Specialty Healthcare demonstrates great deference to the particular group — known as the “unit” — that is petitioned for by the union. Specifically, the Board concluded that if the employer argues that the unit should instead include a larger group of employees than those petitioned for, the Board will not expand the petitioned-for unit, even if the larger unit proposed by the employer would be more appropriate than the smaller petitioned-for unit. The only exception to this presumption in favor of the petitioned-for group is when the employer carries the burden to prove that the additional employees in the larger unit it proposes “share an overwhelming community of interest with those in the petitioned-for unit.” The Board says that this means that to force expansion of the smaller, petitioned-for unit, the employer would have to prove that the common interests of those in the larger group “overlap almost completely” with the interests of the smaller group.

The Board’s ruling in Specialty Healthcare was supported by four of the Board’s five members. The dissenting member wrote emphatically about how, in his view, the majority implemented a significant shift in the law — in favor of piecemeal organizing. The dissenter wrote, “Today’s decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.” He further explained that by imposing an extremely difficult burden on an employer who challenges a proposed unit of a subgroup of its employees as inappropriate, the ruling makes it “virtually impossible for a party opposing [the petitioned-for] unit to prove that any excluded employees should be included.” According to the dissenter, the upshot of the ruling is that, “This will in most instances encourage union organizing in units as small as possible…”

Employers beware. Most any large workforce has some subgroup of employees who feels more disenchanted or disenfranchised than others. These subgroups are the best targets for this piecemeal organizing strategy by unions. In some companies, it might be the warehouse employees in the shipping department. In other companies, it might be sanitation employees. But regardless of what subgroup it may be at any particular facility, the point is that the Board gave unions a strong tool to use to get a foot in the door to an entire facility by first organizing the most receptive subgroup. Once in the facility with representation rights over one group of the employees, the union will almost certainly pursue the rest from within.

The ruling in Specialty Healthcare confirms that it is more difficult than ever for an employer to successfully argue that the appropriate unit should be a larger group of its employees (that the employer would expect would vote “no” to the union). Thus, more than ever, employers wishing to avoid union organizing must be extra attentive to the concerns and needs of each of its apparently dissatisfied sub-groups. It is not enough to rest on the knowledge that most of the workforce would vote “no” in a union election, because savvy unions will not seek to represent the entire workforce in such circumstances. Obviously, a union better controls the outcome of an election when it can exercise greater control over defining the subgroup of persons who are allowed to vote.