The Creeping Union Part I: Could a “Micro-Union” Happen to You?

12 September 2014 Privacy, Cybersecurity & Technology Law Perspectives Blog

Is it ever too early for a startup business to consider the potential impact of unionized labor on future operations? According to a line of cases stemming from a groundbreaking 2011 National Labor Relations Board (NLRB) decision, the answer is “no.” In fact, as explained below, the early stages of a company’s life may be the perfect time to consider whether the company has or may have a “micro union” constituency that could impact future business decisions. 

Specialty Healthcare

In 2011, Specialty Healthcare addressed the question of how narrowly a group of employees may define a given bargaining unit, and many have credited the decision for drastically expanding the ability of employees to unionize. In that case, a group of 53 certified nursing assistants (CNAs) working at a nursing home sought to form a bargaining unit. The employer contended that the group of 53 CNAs was too narrow, and that the only appropriate bargaining unit which could organize was a bargaining unit comprised of 86 employees, including the CNAs and other service and maintenance employees.

In deciding that the group of CNAs was, in fact, an appropriate bargaining unit, Specialty Healthcare articulated a “community of interest” test, which looks to whether:

  • The employees are organized into a separate department
  • Have distinct skills and training
  • Have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between the employer’s other employees
  • Have frequent contact with other employees
  • Interchange with other employees
  • Have distinct terms and conditions of employment
  • Are separately supervised

Applying this approach, the NLRB noted that “a proposed unit need only be an appropriate unit and need not be the only or the most appropriate unit….” By contrast, “the proponent of a larger unit” must demonstrate that employees in the encompassing unit share “an overwhelming community of interest” such that there “is no legitimate basis upon which to exclude certain employees from it.”

Some feared that Specialty Healthcare would lead to a vast expansion of unionization by allowing smaller units to be formed where previously a community of interest had been unable to take hold. Most worrisome, was the possibility that there could be many different bargaining units formed within a labor force, making it nearly impossible for an employer to contend with them all.

In Part II, we will review two recent cases since Specialty Healthcare and what those decisions mean for your startup.

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