NLRB Creates New Organizing Opportunities for Unions

September 7, 2011 By Labor and Employment Practice Group
Legal Update

The National Labor Relations Board has given America's labor unions a big Labor Day present. The NLRB dramatically increased union organizing opportunities within healthcare facilities other than acute care hospitals.

The Labor Board accomplished this by giving unions unprecedented new power to carve up a workforce for purposes of union organizing. In a decision announced last week, Specialty Healthcare and Rehabilitation Center, the NLRB empowered unions to select any "readily identifiable" group for the purpose of starting a union in non-acute healthcare facilities. Only members of the union's selected group will have a vote on unionization. This decision may be a harbinger of the NLRB's desire to permit micro-units in other workplaces.

Employers Face "Overwhelming" Burden

Unions may choose employees "based on job classifications, departments, functions, work locations, skills or similar factors." In the past, unions had to secure the support of broader classes of workers – an entire facility, production and maintenance or service units, etc. Unions may now exclude from their chosen group workers who may not support the union but otherwise share much in common with the employees the union picks. To add additional employees to the voting group, an employer must prove that there is "no legitimate basis" for excluding other employees who share common interests. They must share an "overwhelming community of interest" with the union's selected group.   

The Specialty Healthcare decision reinvents union organizing in non-acute care healthcare facilities. In practice, an organizing union will attempt to secure as much employee support as it can. The union will then ask for a vote only among "micro-units" of employees who support it.

A micro-unit of non-essential or easily replaced workers may create little cause for concern. Often, however, unionization of a small group of employees can lead to dividing and conquering; picking off and organizing small units of employees one at a time. Union organizers will use micro-units as a beachhead for unionizing others. A real or threatened strike of maintenance employees, team leaders, hard-to-train technicians, specially licensed healthcare workers, or similar essential staff would cripple some workplaces.

The NLRB's endorsement of micro-units in non-acute healthcare facilities requires prudent employers in other industries and service organizations to re-think their union risk and avoidance strategies. If you have any questions, please contact any member of Frost Brown Todd's Labor and Employment Practice Group.

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