On the final working day of Chairman Wilma Liebman’s term at the National Labor Relations Board (NLRB or the Board), the Board issued three significant decisions that promote union organizing and protect new or established union representations. The trio of August 26 decisions—Lamons Gasket Co., 357 N.L.R.B. No. 72; UGL-UNICCO Service Co., 357 N.L.R.B. No. 76; and Specialty Healthcare & Rehab. Ctr. of Mobile, 357 N.L.R.B. No. 83—were issued by the Obama Board’s 3-1 Democratic majority, with the lone Republican Member dissenting in all three cases.

These highly technical cases, combined with the Board’s recent issuance of a Final Rule requiring all employers covered by the National Labor Relations Act to post a notice in their workplace informing employees of their rights under the Act and the Board’s Proposed Rule to expedite the Board’s election process, will have two practical effects: (1) they will facilitate new union organizing in small bargaining units that will provide the union with a platform for a broader organizing campaign; and (2) they will shield new or established union representations from challenge by the employer, employees, or rival unions that believe the incumbent union does not have majority support.

Specialty Healthcare—Facilitating Union Organizing in Small Bargaining Units Defined by the Union

In perhaps the most far-reaching of the three August 26 cases, the Board in Specialty Healthcare announced a new standard for determining whether a petitioned-for unit of employees is appropriate for collective bargaining. Specialty Healthcare nominally involved the issue of appropriate bargaining units in non-acute care healthcare facilities (in this case, a unit of Certified Nursing Assistants). However, the Board went well beyond this narrow issue and articulated a new standard for determining whether unions in many other industries may petition for an election among a small group of employees over an employer’s objection that the union has inappropriately excluded other groups of employees from the prospective unit.