The NAM, along with the HR Policy Association and the Society of Human Resource Management, filed an amicus brief 4/23/12 urging the Sixth Circuit to overturn a new NLRB rule that makes it much easier to create exceedingly small collective bargaining units in a workplace. The rule, announced by the NLRB in the Specialty Healthcare case, allows a group of employees to select the bargaining unit they want, and as long as the unit is defined to include those workers who share a “community of interest,” that defined union can only be rejected if an employer can prove that a larger unit is appropriate because the excluded employees share an “overwhelming” community of interest. This burden of proof is extremely difficult to satisfy, and our brief argued that it violates Section 9(c)(5) of the National Labor Relations Act, which limits the Board from granting controlling authority to a union based on the extent to which the employees are organized. Instead, the Board should decide not only that the employees in a proposed unit have a community of interest, but also whether their interests “are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”
We also noted that Section 9(b) of the Act requires the Board to decide on the appropriateness of a bargaining unit, and we argued that it may not delegate this duty to petitioning employees or unions, because that would undermine its obligation to guarantee all employees – including those excluded from the union’s proposed unit – the fullest freedom in exercising their collective bargaining rights. Otherwise, unions can gerrymander the bargaining units “to their hearts’ content” and leave many employees out of the collective bargaining process.
Furthermore, the Board must act to effectuate the law’s policy of promoting efficient collective bargaining, and the micro-union policy announced in Specialty Healthcare leads to piece-meal unionization and inefficient collective bargaining. Multiple unions may have inconsistent goals, may shut down a plant, affecting other employees, and will create a state of chaos.
Finally, we argued that the NLRB must change its policy through notice-and-comment rulemaking, not by simply announcing its new rules in a decision in one of its many cases. This change is a legislative-type judgment that is generalized and designed to govern all future cases.
On August 15, 2013, the Court of Appeals approved the NLRB’s "overwhelming community of interest test" in bargaining unit determination cases. The court rejected all of the employer's challenges to the Board's decision and found that not only did the Board have considerable discretion under the Act in determining the appropriateness of voting units, but also that the Board, in this case, did not substantially change prior law in the unit determination area. The court also held that the Board's decision in Specialty Healthcare did not violate Section 9(c)(5) of the NLRA, which prohibits the approval of bargaining units on an extent-of-organizing basis.