The cornerstone of the National Labor Relations Act (NLRA) is employees’ right to self-organize in a unit appropriate for the purposes of collective bargaining. The NLRA confers on the National Labor Relations Board (NLRB) wide discretion to determine in each case whether the unit appropriate for purposes of collective bargaining is the employer unit, craft unit, plant unit, or a subdivision of any of those units. Therefore, the NLRB’s responsibility in handling a petition for a union election in a particular case is to select “an” appropriate bargaining unit, not “the most” appropriate bargaining unit, from what is often a range of appropriate bargaining units. The initiative in selecting an appropriate unit in the first place resides with the party filing the representation petition—a union, the employees, or an employer. 
Court review of the NLRB’s bargaining unit determinations is limited. Neither the NLRA nor court decisions create a set of presumptively appropriate bargaining units. Rather, the decision about what is an appropriate bargaining unit is based on the informed discretion and expertise of the Board. Let’s look at what that generally entails.
Traditional community-of-interest test
In making a decision on the appropriateness of a bargaining unit, the NLRB traditionally has focused on whether the employees in the proposed unit share a community of interest sufficient to justify their inclusion in a single bargaining unit. Factors the Board has considered in making that determination include similarities in skills, training, compensation and benefits, interests, duties, and working conditions; the functional integration of the operation, including interchange and contact between employees; the employer’s organization, supervisory structure, and personnel policies; the bargaining history in the proposed unit; and the extent of union organizing among the employees.
In the past, the NLRB has approached bargaining unit questions with a big net. The Board favored large units over smaller ones in an attempt to afford as many employees as possible the opportunity to be represented for purposes of collective bargaining, give unions clout at the bargaining table, prevent repetitive bargaining and frequent strikes, and avoid jurisdictional disputes, wage whipsawing (playing one unit or group of employees against another in wage negotiations), and small residual groups of unrepresented employees that no union would want to represent. Large facilitywide production and maintenance, over-the-road driver, and skilled maintenance units became the norm.
Trend toward smaller units
With the NLRB’s recent decision in Specialty Healthcare II (certifying a nursing home unit limited to certified nursing assistants as opposed to the traditional long-term care unit of all service and maintenance employees) and the affirmation of that decision by the U.S. 6th Circuit Court of Appeals in August, the Board subtly but significantly shifted positions on the scope of the appropriate unit in which union elections will be conducted. Thus, the party filing the petition for an election—be it a union, an employer, or the employees—is permitted to describe the unit at the outset. The Board will conduct the election in the unit described in the petition as long as it is an appropriate unit.
If a party contends that a petitioned-for unit containing employees readily identifiable as a group that shares a community of interest is nevertheless inappropriate because it doesn’t contain additional employees (which frequently is an employer’s response to an election petition filed by a union), it has the burden of demonstrating that the excluded employees share an “overwhelming” community of interest that overlaps almost completely with the included employees. The fact that the excluded employees have similar wages, benefits, and personnel policies, report to a common chain of command, and interact with the included employees or that the petitioned-for unit is smaller than what would be an equally appropriate overall/larger unit hasn’t been found to render the smaller unit an inappropriate unit in which to conduct an election.
Thus, units of certified nursing assistants (Specialty Healthcare), employees in cosmetics and fragrance (Macy’s), shoe (Bergdorf Goodman), and maintenance (Nestlé USA) departments, and retail and lead service agents (Dollar Thrifty Automotive Group) each have been certified by the NLRB over the objection of the employers. From the Board’s new perspective, smaller units will be more cohesive and free from conflicts of interest in which a minority interest group is submerged in an overall larger unit. However, the Board will continue to refuse to certify fractured units in which the combination of employees is too narrow in scope or has no rational basis for including certain jobs but excluding others (e.g., employees working on a particular floor or shift or for one supervisor).
An election in a small unit has always been more advantageous to the union. For example, unions recently have been winning approximately 58 percent of elections. However, the percentage of union victories increases as the size of the unit decreases—unions win 75 percent or more of the elections in units of fewer than 10 voters. That fact, combined with the NLRB’s proposed but delayed rules for expediting the election process by shortening the time between the filing of a petition and voting, presents a clear and present danger for employers and a significant advantage for unions. Employers frequently don’t engage in serious union avoidance preparations until after a petition is filed and, under the Board’s proposed rule, would have even less time to convince employees that they are better off not being shackled with a union. Those facts aren’t lost on the current NLRB, which is attempting to breathe life into itself and the union movement in the 21st century.
Steps you can take
So what are employers that wish to remain union-free to do? You should promptly take action to attempt to insulate your company from a proliferation of micro-units composed of small groups of workers cherry- picked by multiple unions desperate for an influx of new members and their dues. Review how your workforce is structured in terms of lines of supervision, skills, wages, and other terms and conditions of employment so that no single group of employees can rationally be carved out from their peers. That may entail a flattening of the organization to expand control of certain supervisors, reduce the number of rank-and-file job titles, and cross-train employees. You should also make the terms and conditions of employment as uniform as possible.
In addition, you should ensure that jobs you don’t want included in a bargaining unit possess in fact—not merely on paper—the attributes of supervision, management, or access to confidential labor relations information that will achieve that objective. Undertake an audit of your organization’s structure, practices, and policies to confirm they’re lawful, consistent with current NLRB case law, and designed to maintain a union-free environment. Moreover, you should provide managers and supervisors with union-avoidance training, including the causes and symptoms of and responses to an organizing effort.
If you take those actions, you will put your company in an advantageous position to fend off any union-organizing attempt regardless of the size of the unit in the petition. After receiving a demand for recognition, you may consider using Specialty Healthcare II to your advantage by filing a petition for an election yourself, known as an RM petition. You may describe the appropriate unit in which the election presumptively would be held to include only jobs held by employees you want to vote (workers who presumably will vote against representation) and exclude similar jobs that arguably could be included in a larger unit that supports the union. This tactic would put the union in the position of going forward with an election in which the voting unit has been gerrymandered in your company’s favor or taking on the difficult task of trying to expand the unit by showing the excluded employees share an “overwhelming” community of interest with those in the petitioned-for unit.
Bottom line
The 6th Circuit’s decision in Specialty Healthcare II creates new challenges for union-free employers. It also gives you additional incentive to address personnel matters you may have put on the back burner in recent years.
In the end, the decision provides opportunities for employers that are prepared to rise to the occasion.
Martin J. Saunders is an attorney with Steptoe & Johnson, in the firm’s Southpointe, Pennsylvania, office. He focuses his practice in the area of labor and employment law and related litigation. He may be contacted at martin.saunders@steptoe-johnson.com