One of the NLRB’s most sweeping decisions in decades, Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf, has reached a federal appeals court, as the employer seeks to have the decision overturned.  As we have previously discussed, the Board in this case established the micro union standard, where the bargaining unit sought by a union will be given special deference if the employee grouping selected shares a community of interest.  The significance of this rule is that an employer now may be faced with multiple bargaining units (e,g, by department or job classification or title) when the standard for 77 years has been to look at the industry involved and the functional integration of the employees.  Now, if an employer seeks to include additional employees in the bargaining unit, it must demonstrate the larger grouping shares an “overwhelming” community of interest.  In the rule’s short tenure, it has become apparent that the undefined new standard is (almost) impossible to reach.

The case is being heard by the Sixth Circuit Court of Appeals in Cincinnati, Ohio.  As of April 23, 2012, the principal parties and friends of the court have filed their briefs.  Just as with the underlying case, it is anticipated that the court will receive numerous briefs from interested parties. The next step will be for the court to hold oral argument.  A decision is not expected for several months.

We were privileged to file amicus briefs separately on behalf of two distinguished organizations, the Retail Industry Leaders Association (“RILA”) and the Coalition for a Democratic Workplace (“CDW”).  As the briefs demonstrate, the Board’s rule in Specialty Healthcare imposed an entirely new legal framework without proper notice and discussion, as well as violated key provisions of the NLRA.  Those briefs are attached here RILA Amicus Brief (Apr 23 2012).pdf and here Coalition For A Democratic Workplace Amicus Brief (April 23, 2012).pdf

As always, we will be watching this case very closely and will report significant developments as they occur.