NLRB Changes Bargaining Unit Standard

Volume: 21 | Issue: 52
December 15, 2022

The National Labor Relations Board (NLRB or Board) has reversed course on the standard it will use to determine whether additional employees should be included in a petitioned-for bargaining unit. In its decision yesterday in American Steel Construction, Inc., the Board decided to return to a standard that makes it easier for unions to organize via “micro-units.”

The scope of a bargaining unit is a critical issue in union election proceedings because it often impacts whether the union wins or loses the election. Generally speaking, the larger the voting unit, the harder it is to win a majority vote.

In American Steel Construction, the union filed an election petition seeking to represent the ironworkers who worked on construction sites for the employer. The employer disagreed with the scope of the bargaining unit; it argued that the painters, drivers, and fabricators who worked in its shop should also be included in the bargaining unit because they worked very closely with the field ironworkers and shared the same terms and conditions of employment.

The NLRB Regional Director agreed with the employer that the unit should include both field and shop employees, applying the legal standard adopted by the Board during the Trump administration (PCC Structurals, Inc. as modified by The Boeing Co.). But the current NLRB disagreed and decided to overrule that legal standard and return to the standard set forth in the case of Specialty Healthcare & Rehabilitation Center of Mobile. This standard, adopted during the Obama administration, gives far greater weight to the union’s choice of unit and makes it much harder to include other employees.

Under the Specialty Healthcare standard, as long as the petitioned-for unit is “readily identifiable as a group” and shares a “community of interest,” it will be approved as the appropriate unit. If an employer seeks to include additional employees, it will have to prove that they share an “overwhelming community of interest” with the petitioned-for unit. As the two dissenting Board members wrote, “[u]nder this framework, . . . the similarity of excluded employees’ interests with those of included employees is simply disregarded unless the interests of included and excluded employees ‘overlap almost completely.’”

This ruling is not a surprise, as the current General Counsel to the NLRB made clear her intentions last year to work toward rolling back the more balanced decisions issued by the Board during the Trump administration. However, it is still troubling news for employers. If you are interested in learning more about election proceedings, need assistance with a NLRB matter, or would like to view a recording of our recent webinar addressing the current state of labor law and union activity, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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