The Sixth Circuit, on August 15, 2013, approved the Board’s decision in Specialty Health Care Rehabilitation Center of Mobile. In doing so, it opened the door for a much more effective way for unions to organize any workplace.
There has been a great deal of commentary regarding this decision by the Board since it issued in 2011. It has been, in essence, former Chairman Liebman’s swan song, and a very critical one at that. Even though the decision is in reference to a healthcare employer, the Board has made it clear, from its own postings on its website, that the decision is not limited to the healthcare industry. Accordingly, all employers are subject to this new application of representation case processing.
The key point here is that the unions can now carve out a grouping of employees, no matter how small, and have that group be subject to an NLRB election. Obviously, if the union wins that election, then they have a great foot-hold to expand their organizing efforts into the rest of the facility in question. For example, although historically maintenance personnel in a manufacturing setting would be part of an overall unit of production employees, a union could easily organize a smaller unit of maintenance personnel and use that as a springboard to organize the remaining production employees. The bottom line is that the Board has abandoned its often-cited position that bargaining units should not be the same as the extent of the union’s organizing. But Specialty Health Care has turned that rule on its head. No doubt that with this change in policy by the NLRB, employers should be even more diligent in their efforts in union avoidance techniques to avoid having unions getting any foothold within their facilities.