Last month, the Sixth Circuit in Kindred Nursing Centers East, LLC v. NLRB enforced the National Labor Relations Board’s 2011 Specialty Healthcare II decision in which the Board adopted a controversial test opening the door for unions to organize “micro” bargaining units of employees despite employer evidence that additional employees share a community of interest with those employees and therefore should be added to the unit. In Specialty Healthcare II, the Board held that “in cases in which a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees. The Sixth Circuit’s Kindred decision therefore enables unions to identify and organize smaller units of sympathetic employees, giving them an easier foot in the door at any particular employer.

In Kindred, the union petitioned to represent a unit of 53 full-time and regular part time Certified Nursing Assistants (CNAs) at Kindred Nursing Center (f/k/a Specialty Healthcare). The CNA job duties required them generally to help residents with daily functions, such as grooming, oral hygiene, bathing and dressing, and incontinence care and provide them with other assistive services. Kindred sought to include in the bargaining unit with the CNAs several other employees whom it deemed to be service and maintenance employees who had similar functions and conditions of employment. The Board’s Regional Office found that the union’s petitioned-for unit was an appropriate unit in which to conduct an election. The Region held the election, and the union won. Afterwards, Kindred filed a timely request for Board review of the Regional Director’s decision, arguing that the Regional Director had erred in excluding from the bargaining unit the employees Kindred sought to add. The Board granted review and after seeking briefs from the parties and other interested parties with respect to the appropriateness of the petitioned-for bargaining unit, the Board issued its Specialty Healthcare II decision. Kindred refused to bargain with the union, which then filed an unfair labor practice charge. The Board found that Kindred had violated the Act.

On appeal to the Sixth Circuit, the court noted that it must offer deference to the Board’s conclusion as to the appropriateness of a bargaining unit and cannot overturn the decision unless it is arbitrary, unreasonable or an abuse of discretion. In addition, the court noted that in making a unit determination, the Board is not required to select the most appropriate unit, but rather must only select an appropriate unit from among what is often a range of appropriate units. Finally, the court noted that “[i]t is within the Board’s purview . . . to develop standards for ascertaining whether one unit is more appropriate than another.”

The traditional community-of-interest test employed by the Board requires simply that groups of employees in the proposed bargaining unit share a community of interests sufficient to justify their mutual inclusion in a single bargaining unit. The test includes the following five factors: “(1) similarity in skills, interests, duties and working conditions; (2) functional integration of the plant, including interchange and contact among the employees; (3) the employer’s organization and supervisory structure; (4) the bargaining history; and (5) the extent of union organization among the employees.” The Board’s Specialty Healthcare II decision, now upheld by the Sixth Circuit in Kindred, provides that once the petitioned-for unit has been determined to be appropriate based on these community of interest factors, a larger proposed appropriate unit can be approved only if the party seeking to include additional employees can show that the excluded employees share an overwhelming community of interest with the included employees – a much higher standard that often will be difficult to demonstrate. As we have previously noted, this standard will make it easier for unions to gain footholds at employers from which they can expand their representation.

In response to this decision, employers should consider whether any particular group of employees might be most vulnerable to a union effort to target a small group and get a foot-hold. Employers should also consider whether organizational changes made now might make it more difficult for a union to “pick off” a smaller group to organize. Such changes might include consolidation of employees into the same department with the same reporting structure and alignment of pay, benefits, hours, and other terms and conditions of employment.