In its ongoing effort to halt the decline in U.S. unionization, the National Labor Relations Board has now made it much easier for labor unions to unionize small groups of employees. Under the traditional “community-of-interest,” the Board has allowed unions to unionize “an” appropriate group or “unit” of employees, which need not be the most appropriate unit. However, where other employees also share a community of interest with those in the unit proposed by the union, the Board has traditionally determined whether the interests of the excluded employees are sufficiently distinct to warrant excluding them from the bargaining unit. Now, in Speciality Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Case 15-RC-8773 (2011), the Board has reversed that approach and ruled that a union may unionize any group of employees with common interests, and exclude others with similar common interests, unless the employer or the excluded employees prove that those excluded share an “overwhelming community of interest” with the employees in the unit proposed by the union. As dissenting Member Brian E. Hayes noted, this decision will “make it virtually impossible for a party opposing [the unit proposed by the union] to prove that any excluded employees should be included.”

Member Hayes also described the majority’s actions as “beyond the pale of reasoned adjudication” and part of the majority’s “overall plan” and “campaign to support union organization where recent independent efforts of unions to persuade employees to join or remain with them in large numbers have failed.”