Over the last few months, we’ve discussed several federal appeals court decisions that rejected or invalidated pro-labor actions.  There was the decision from the Federal Appeals Court for the District of Columbia Circuit where the court ruled that President Obama violated the Constitution when he filled vacancies on the Board without getting approval from the Senate.  Next, the Board got “hung up” on posters when the same court invalidated a rule that would have required six million employers subject to its jurisdiction to post a “Notification of Employee Rights under the National Labor Relations Act” or be guilty of an unfair labor practice.  Recently, in an unprecedented move, labor movement leaders suggested that they will invite employees from non-unionized settings to become paying members, even though they are not covered by a collective bargaining agreement.  We see this as a somewhat desperate move to boost low-membership numbers.

Unfortunately, we have to remind employers that the NLRB sometimes (all too often, in fact) comes out on top.  Such is the case with a dangerous pro-labor decision issued by the Board back in 2011 and affirmed by a federal appeals court a few weeks ago.  The case addressed the ability of unions to focus organizing efforts on smaller groups or “micro-units” of employees at the worksite.  In these cases, the union tries to organize the “micro-unit” without allowing a larger group of rank-and-file employees to be part of the bargaining unit.  The strategy is straightforward:  fewer employees in the unit means convincing fewer people to vote for union representation.  Moreover, the “micro-unit” will invariably consist of a few sympathetic employees supportive of union efforts.  Ultimately, the union hopes to get its foot in the door, so to speak, with the end-goal of convincing larger groups to organize down the road.  The employer is still faced with costly bargaining obligations and now has to operate in daily fear of broader organization.

The Board’s controversial 2011 decision in Specialty Healthcare, 357 NLRB No. 83 (2011), is illustrative.  The union tried to organize a small group of CNAs while excluding all other non-supervisory service and maintenance employees.  Presumably, the service and maintenance employees were not receptive to organizing.  The employer argued that the CNA-only group was not an appropriate bargaining unit.  Under previous Board precedent, it was probably correct.  However, the NLRB overruled an older decision and created a new test for determining the appropriateness of a bargaining unit.  Not surprisingly, the test makes it more difficult for employers to challenge smaller “micro-units.”  In a nutshell, the Board put the burden on employers to demonstrate that the excluded employees share an “overwhelming community of interest” with employee in the bargaining unit.  The employees need not be included if they do not share this “overwhelming community of interest.”

The employer appealed the decision to a federal court of appeals and lost.  The court rejected the argument that the Board overstepped its authority by creating the new rule.  The decision paves the way for unions to try and use “micro-units” to control the group of employees it seeks to organize.  In the end, unions are more likely to win elections because they can basically hand-pick the group of employees who vote.  Bottom line:  It’s more important than ever to consider union avoidance strategies.  If you’re concerned about potential organizing efforts at your organization, now may be a good time to consult with labor counsel.