We have reported in recent months about steps that the National Labor Relations Board ("NLRB") has been taking that will make it far more easy for a Union to win and keep the right to represent a group of workers. The most recent NLRB decision to support union organizing rights opens the door for unions to target a smaller group of employees at a workplace, rather than having to organize a larger group of workers. This will make it much easier for a union to "cherry-pick" a group of workers, gain a foothold, and then try to expand from there to other groups in the same company.

To appreciate how important this can be, consider this example. Presume a union is interested in organizing the workers at a manufacturing plant where there are 300 hourly-paid production and maintenance workers. To get representation rights, the union has to target and gain support among a proper group of workers and then win a secret ballot election. But what group of workers? Is it all 300 production and maintenance workers? Until the NLRB’s most recent decision on the topic, that would have been the group that the union would typically have had to try to organize. Now, presume that in this hypothetical manufacturing plant, there is substantial dissatisfaction for one reason or another among the 40 employees in the maintenance department, but not so among the rest of the workers. The union would have a much better chance at gaining enough support to win an election among just that group of 40. Now they can target that group, hope to win the right to represent them, and then begin a plan to expand later to organize other groups in the same workplace.

In Specialty Healthcare & Rehab Ctr., 357 NLRB No. 83, the Board had to decide the appropriate group of employees for the United Steelworkers Union to target at a non-acute care nursing facility. The Union targeted the 53 certified nursing assistants (CNA’s). The Employer argued that the only appropriate group for a union representation vote would have to include 33 additional non-professional service and maintenance employees. Under long-standing NLRB precedent for determining what group of employees share a sufficient community of interest to be in a voting group, the Employer argument would have carried the day. As it has done in other ways in recent months, the NLRB used this case to change its approach and give organized labor another tool for organizing. The NLRB held that the United Steelworkers could attempt to organize just the CNA’s. Most important, the NLRB announced a new approach to cases like this, shifting to employers a heavy burden when they want to argue that a union should have to target a larger group. All a union has to do now is show that the group they target is a "readily identifiable" group, based on a list of factors including job classifications. If the employer argues that there are additional employees appropriate for the organizing effort, the employer will have a burden to show that the employees in the larger group "share an overwhelming community of interest" with the group being targeted by the union.

In his dissenting opinion, NLRB Member Hayes concludes that the majority decided the case the way they did for the purpose of "reversing the decades-old decline in union density in the private American workforce" and to "encourage unions to engage in incremental organizing in the smallest units possible."

If you are keeping a scorecard on NLRB efforts to support union organizing, consider each of the following things that have occurred recently:

  • Mandatory posting in all workplaces effective November 14, 2011 advising employees of their right to engage in union organizing.
  • The Specialty Healthcare case described above, giving unions the opportunity to target small groups of employees for organizing.
  • A currently pending proposal to significantly shorten the period of time between when a union petitions for an election and when the election occurs, making it very difficult for employers to effectively communicate their position before the election.
  • Administrative action by the NLRB to call for stiffer penalties of employers found to have engaged in unfair labor practices to combat organizing.
  • A series of cases strengthening the protection of unions to continue to represent employees after a business is purchased or after an employer voluntarily recognizes the union without an election.

We will follow closely further developments on the Board’s proposed rules to shorten the period before representation elections. An employer facing a potential union election among a small group of employees in a short period of time will face an especially difficult challenge.