In FedEx Freight v.
NLRB, the 8th Circuit Court of Appeals (which covers Minnesota,
Iowa, and a handful of other nearby states) weighed in for the first time and
determined that the analysis under the NLRB’s controversial 2011 Specialty Healthcare decision is
acceptable under the National Labor Relations Act. Under this analysis, unions
have the ability to organize small “micro units,” rather than larger bargaining
units encompassing all or a large portion of an employer’s workforce. For example, if the unit meets the test in
the Specialty Healthcare decision, a
union could organize a small unit of 6 out of an employer’s 106 employees—or
multiple unions could each organize units of 6 employees each, and cause the
employer to bargain individually with each bargaining unit! Unions like these micro units because they
are often easier to organize, and provide a way to divide and conquer a larger
workforce, while employers are more likely to prefer to deal with an entire
workforce as a whole or, a large segment thereof.
Based on this analysis, the NLRB will first determine
whether a bargaining unit proposed by the union is appropriate because it
consists of employees who are “readily identifiable as a group (based on job
classifications, departments, functions, work locations, skills, or similar
factors)” and who “share a community of interest.” Then, if the proposed unit is appropriate
under this test, the employer can challenge the unit by showing that there are
additional employees who need to be included in the unit to be appropriate—this
is a high standard, and merely showing that another unit would be more appropriate is not sufficient.
This analysis is problematic for employers, because it gives
unions the ability to pick and choose small groups of supporters to organize,
and get a foot in the door to non-unionized employers, and then use these
“insiders” to organize another group, and so on. Additionally, bargaining with multiple
different groups of employees is time consuming and leads to inconsistent labor
relations. However, the NLRB is already
using this 8th Circuit decision to support extending its analysis to
other circuits. For assistance in
dealing with a union organizing campaign in your workplace, contact Wessels
Sherman attorneys at (952) 746-1700 or email
