The Eighth Circuit became another notch in the belt of the NLRB in support of its position as set forth in Specialty Healthcare with the issuance of FedEx Freight, Inc. v. NLRB. The facts are fairly straightforward and are typical for a representation proceeding in that the employer wanted to expand the bargaining unit beyond the scope of that which was petitioned for by the union, citing prior case law and the Board’s misapplication of the law, in particular, its Specialty Healthcare doctrine. Unfortunately for FedEx Freight, this is one area of the law in which the courts give the NLRB a great deal of deference. And that is exactly the route the Eighth Circuit took in this matter. As frustrating as this area of the law is for many of us on the management side, the law has long been stated that the unit petitioned for need only be an appropriate unit, not the most appropriate unit. And while it may appear that the Board is simply allowing the unions to dictate the scope of the bargaining unit based upon the extent of organization, as the Eighth Circuit points out in its decision, while that may not be given controlling weight it can be a consideration in the determination by the Board regarding the appropriateness of the unit.
Simply put, I see the Specialty Healthcare decision something we are going to have to live with for some time until the makeup of the Board changes and there is a reversion to the previous standard. Regardless of the case law in this area, ultimately it gets down to winning the election, and while obtaining a unit that is more favorable for a win in management’s column is part of that process, there are other ways in which to win a NLRB election and the recent statistics set forth by the Board under the new rules indicate that that has not changed. So in terms of an organizing campaign, the focus should be on the campaign, versus the scope of the unit, given the overwhelming direction by the Courts of Appeal who have supported the Board’s Specialty Healthcare decision.