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Court Decision Eases Way for

On August 15, 2013, in the case of Kindred Nursing v. N.L.R.B., the U.S. Court of Appeals for the Sixth Circuit affirmed a National Labor Relations Board ("NLRB") decision that makes it easier for unions to organize smaller units of employees.

Kindred Nursing Centers East, LLC, operates a nursing home and rehabilitation center in Mobile, Alabama.  The United Steelworkers sought to represent Kindred's fifty-three Certified Nursing Assistants ("CNAs").  Kindred thought that the bargaining unit should also include thirty-three service and maintenance employees.  These employees ranged from resident activity assistants to cooks to the receptionist.  All employees were subject to the same employment policies and procedures.

The NLRB's Regional Director determined that the fifty-three CNAs constituted an appropriate unit in which to conduct an election.  The union won the election, but Kindred believed that the bargaining unit should have included the additional employees and refused to bargain.  In response, the union filed an unfair-labor-practice charge.  Kindred countered with the defense that the bargaining unit was inappropriate.

The NLRB upheld the make-up of the bargaining unit, citing the "community of interest test."  Pursuant to this test, employees may be grouped together in a single bargaining unit so long as they share a "community of interests."  The Board determines the community of interests by looking at several factors, including the skills, interests, duties and working conditions of the employees, the employer's organization and supervisory structure, and the bargaining history.  

The NLRB also introduced the "overwhelming community of interest" test for when an employer challenges the make-up of a bargaining unit.  Under this test, the employer must show that the excluded employees share an "overwhelming community of interest" with the employees in the bargaining unit.  In other words, the Board will find for the employer only if there is a slight or insignificant distinction in the terms and conditions of employment for the two groups of employees.  The employer must prove that there is no rational basis for the unit's boundaries.

For example, an "overwhelming community of interest" occurs when a proposed unit is a "fractured unit."  A fractured unit results from an arbitrary division of similar employees.  In this case, a fractured unit would occur if some CNAs were included in the bargaining unit, while other CNAs were excluded.

The NLRB justified this new test by explaining that a proposed bargaining unit only needs to be an appropriate unit and not the most appropriate unit.  The Board also mentioned that it had always required employers to meet a higher standard, when challenging the make-up of bargaining units.  Therefore, the Board explained, this test simply clarified NLRB practice.

Kindred appealed the Board's determination to the U.S. Court of Appeals for the Sixth Circuit, but the Court showed great deference to the NLRB.  The Court explained that it must uphold the Board's determination unless the NLRB acted arbitrarily or unreasonably or abused its discretion.  Applying this standard, the Court affirmed the NLRB decision, holding that the Board did have rational reasons for adopting the overwhelming community of interest test.

The Board's determination, along with the Court of Appeals' approval, makes it easier for unions to organize employees.  Unions can simply petition to represent "micro-units," a very small selection of employees.  By targeting fewer employees, it is easier for unions to win representation elections.  Once a union gains representation of a few employees, it obtains a foothold within the company and it is easier for subsequent organizing campaigns.

Contact a member of our Labor and Employment Group to determine whether this decision creates a potential risk to your business.