The unexpected passage of the Michigan right to work legislation has led some Michigan employers to believe the threat of union organizing campaigns has diminished. While the issue of right to work will remain a hot topic until the next general election, employers should be aware of the fact that a decision of the NLRB which made it harder for employers to try to expand the sought after bargaining unit in a representation proceeding has been upheld by the 6th Circuit [an enhanced version of this opinion is available to lexis.com subscribers]. The impact of that decision for employers may be that the NLRB expands the heightened burden of proof to employers outside of the healthcare industry allowing unions to target smaller groups of employees. So what does this decision have to do with right to work? It enables the union to organize a smaller group of employees and thus potentially minimize the number of employees who would opt out of union membership. If a union sees that a particular part of an employer's operation is comprised of employees who are interested in union representation, it can focus on those employees without having to organize a much larger segment where employees may not be as interested. The NLRB standard is that if an employer seeks a larger unit of employees as an appropriate unit for bargaining, it has the burden of establishing an "overwhelming community of interest" between the employees in the petitioned for unit and the employees that the employer wants to add to the unit. This is a very difficult burden for employers, especially since the current Obama Board will oversee the implementation of the standard. Employees who desire union representation can tell the organizers who is interested and who is not. The union can narrowly focus on those who are interested. Once a union has established its beach head inside an employer, it can organize from within. While there is no guarantee of success, it is certainly easier to organize from the inside of a company than from the outside. Employers need to be aware that the absence of functional integration of work among employees and the existence of a larger number of job classifications lends support to a union's attempt to organize a smaller unit. The right to work law is not going away for now, but look for unions to target smaller groups of employees to lessen its potential effect.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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