Microbreweries Are Good; Micro-Bargaining Units Aren’t

I’m no beer aficionado but every now and then I enjoy a Purple Haze, an American-style wheat beer from a microbrewery just outside of New Orleans. What employers will probably not enjoy is the National Labor Relations Board’s (“Board”) recent ruling, in Specialty Healthcare and Rehabilitation Center of Mobile, making it easier for unions to form “micro-bargaining units.”

On the heels of Wilma B. Liebman’s term as chairman ending, the Board ruled that just 53 certified nursing assistants at a nursing home could vote on union representation, without including the nursing home’s 33 other nonprofessional workers (janitors, cooks and file clerks). The Board applied the following standard in determining the appropriateness of the unit of the certified nursing assistants:

We therefore take this opportunity to make clear that, when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

The Board pronounced that the standard applies to all industries.

Prior to this decision, when a union would try to seek an election in an unrealistically small group, the employer would challenge the unit based on the old standard – a “community of interest.” This would usually mean that a larger unit of employees with similar benefits and similar ultimate supervisors would be more appropriate.

Now, with the new narrower standard, unions will have a greater ability to target smaller groups of employees as appropriate units, “micro-bargaining unit.s” Once the union has successfully formed a micro-bargaining unit within a company, it will be easier for it form other micro-bargaining units through its employee members. In addition to the ease of unionizing, the micro-bargaining units will be more difficult to bargain with and manage with a myriad of wages, benefits, work rules and conditions of employment. Board member Brian Hayes, in dissent, said, “[t]his [standard] would represent an extraordinary fragmentation of the work force for collective-bargaining purposes, a situation that cannot lead itself to the labor relations stability to which my colleges so often dedicate their efforts.”