Last week, in Kindred Nursing Centers East v. NLRB, the US Court of Appeals for the Sixth Circuit upheld the 2011 decision by the National Labor Relations Board (NLRB) in Specialty Healthcare and Rehabilitation Center of Mobile. This controversial decision allows unions to organize “micro” bargaining units of employees, making it easier for them to form bargaining units with new employers.
The NLRB still requires that the group of employees in a proposed bargaining unit share a “community of interest” under a five-factor test that looks at:
- Similarity in duties, skills, interests and working conditions
- Functional integration, including contact among the employees
- The employer’s organization and supervision structure
- The bargaining history
- The extent of current union organization
This ruling specifies that while the unit must be appropriate, it does not have to be the MOST appropriate unit. Unions can now strategically select a smaller, “micro” grouping of employees that will succeed in a vote to organize.
For employers who believe that a larger proposed unit is more appropriate, this upheld ruling creates a higher standard of proof – that the excluded employees share an overwhelming community of interest with the included employees – which makes it more difficult to succeed in redefining the unit.
If you have questions about your ability to organize with a subset of employees or if you believe your employees are being organized inappropriately, contact a Minneapolis labor law attorney with LeBlanc Law & Mediation at 612-819-9652.
