The National Labor Relations Board (the “Board”) continues to pave the way for unions to organize relatively small, narrowly defined groups of employees (“mini-bargaining units”) within an employer’s workforce. When a union requests an election to establish its status as the representative of a group of employees, that group must be an “appropriate unit” for collective bargaining in the sense that its members share a community of interest and the group does not arbitrarily exclude other employees whose interests are closely aligned with the group. In August 2011, the Board decided Specialty Healthcare and Rehabilitation Center of Mobile, (discussed in our September 21, 2011 Legal Alert)  which dramatically raised the bar for employers arguing that a proposed bargaining unit is inappropriate because it excludes certain employees. The Specialty Healthcare decision required employers to show that the excluded employees share an “overwhelming community of interest” with the members of the proposed unit. The Board recently applied this new standard in DTG Operations, Inc., which illustrates the wide latitude unions now have to define an appropriate bargaining unit over the objections of employers.

The DTG Operations Decision

In DTG Operations, of the 109 hourly employees working at an airport car rental location, the union petitioned to represent only the 31 employees working behind the counter—the rental service agents and lead rental service agents. Applying the two-step analysis set forth in Specialty Healthcare, the Board considered first whether the petitioned-for unit shared a community of interest, even if it was not the most appropriate unit. The Board found this factor satisfied because the lead rental service agents performed essentially the same job as the rental service agents, plus some additional responsibilities. Turning to the second step of the analysis, the Board considered whether the excluded hourly employees shared an “overwhelming community of interest” with the petitioned-for unit. Despite the fact that other hourly employees shared common supervisors and were paid on an extremely similar pay scale as the rental service agents, and despite the Board’s acknowledgement that the employer’s facility was “functionally integrated, with all employees working toward renting vehicles to customers,” the Board found that other employees failed to share an “overwhelming community of interest” with the petitioned-for unit.

In deciding that the other hourly employees’ positions were sufficiently different, the Board seized on relatively minor distinctions. The Board stressed that only the rental service agents were required to have at least nine months of car rental or sales experience, even though this same experience was expected of exit booth agents and even though other categories of employees also had specific work experience requirements. Although all employees were required to wear uniforms, the Board noted that the rental service agents’ uniforms were “classier.” Although other employees were encouraged to promote rental upgrades, only rental service agents had the primary responsibility of processing upgrades and executing rental agreements. Employees in a number of job classifications were entitled to incentive-based pay increases, although only rental service agents were subject to demotion for poor incentive figures. Based on these distinctions, the Board found that the excluded employees lacked an overwhelming community of interest with the rental service agents and lead rental service agents.

Practical Implications

In many cases, it will now likely be quite difficult for an employer to successfully challenge a petitioned-for unit, as illustrated by the subtle distinctions between job classifications seized upon by the Board in DTG Operations. As stressed by Member Hayes’s dissenting opinion, “it is difficult to imagine a multiclassification, multifunction workplace where the jobs of all workers are nevertheless so homogeneous that such distinctions could not be drawn.” The likely implication of this decision is the easy approval of most petitioned-for bargaining units, so long as the proposed unit is not defined arbitrarily.

Unions may now more readily gain a foothold in large facilities by focusing their efforts on small groups of employees that are easier to organize. Once the union has established itself inside the facility, union members will be in a position to organize other segments of the workforce from within. In addition, companies will face an increased risk of employing a fragmented workforce consisting of multiple bargaining units, each represented by a different union. Coupled with the NLRB’s new rules requiring notice posting and shortened election periods, employers are well-advised to be proactive in preparing for potential union campaigns before they start. Our team of labor attorneys has been assisting clients in developing tailored labor relations strategies to meet these new challenges.