Federal Court Upholds NLRB Approval of Mini-Bargaining Unit
By Ruder Ware Alumni
May 20, 2014
A recent decision by the 6th Circuit Court of Appeals (the Federal Court covering the states of Kentucky, Michigan, Ohio and Tennessee) held that the NLRB decision allowing for a “mini-union” was a valid and proper exercise of Board authority. In this case, the NLRB approved a bargaining unit that was comprised of a small group of employees in one position (certified nursing assistant position) instead of requiring the unit to represent a comprehensive bargaining unit of all employees with a “similar community of interest.” In its ruling, the Board held that the employer had to prove “overwhelming community of interest” factors in order to strike down the proposed small bargaining unit and require an election to be held amongst employees in a large group of positions. This decision recognizes and validates NLRB rulings that require a company to prove overwhelming circumstances why the union should be required to win an election of a larger bargaining unit instead of the smaller bargaining unit comprised of one position.
The impact of this decision is the potential that employers will be faced with union election petitions to represent a small portion of an employee workforce. This will certainly allow the union to be more successful in an election of a narrow group of employees with the potential that the union will expand to cover other positions in the future. This ruling opens the door to aggressive union campaigns for smaller components of an employee workforce where the likelihood of success is stronger.
Employers must continue to be on watch for union-organizing activities in the workplace. Examples of union-organizing activities are flyers distributed by union officials to employees (or placing them on windshields of automobiles), secretive discussions in the hallway or after work hours, or invitations to union-organizing meetings outside the workplace. Employers must continue to watch for telltale signs of union-organizing activities and respond appropriately within the confines of the law.
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