[co-author: Carly Siditsky]

Q: Who are the newest members of the National Labor Relations Board (NLRB), and what does their arrival mean for the future of micro-units?

A: Party control of the National Labor Relations Board recently shifted to the Democrats when the Senate approved two Biden appointees. In August, longtime union-side attorneys Gwynne Wilcox and David Prouty joined fellow Democrat Chairman Lauren McFerran and Republican appointees John Ring and Michael Kaplan on the five-member board.

Agency watchers anticipate that with the arrival of these new members, the NLRB may roll back employer-friendly positions it took during the last administration — including possibly the “community of interest” standard, set forth by the NLRB in PCC Structurals, 365 NLRB No. 160 (2017).

The “community of interest” standard made it easier for employers to challenge petitions by small bargaining units — dubbed “micro-units” — by arguing that employees in the proposed unit were not sufficiently distinct from other workers to merit separate representation. The factors used to determine community of interest include: (1) similarity in skills, interests, functions, duties, and working conditions between petitioning and excluded employees; (2) the extent of interaction and interchange among groups of employees; (3) the employer’s organizational structure, including whether different groups of employees are jointly supervised; (4) prior bargaining history (a factor to which the NLRB has, in the past, given particular weight); and (5) the extent of union organization among the employees.

PCC Structurals overruled an earlier standard, articulated by the NLRB in Specialty Healthcare, 357 NLRB 934 (2011), that made it harder for employers to succeed with such a challenge. Under Specialty Healthcare, an employer had the burden to show that the bargaining unit shared an “overwhelming” community of interest with excluded employees.

Employers disliked the Specialty Healthcare standard, expressing their concern that workplaces could become fractured between union and nonunion workers and expose employers to the costs and challenges of managing subsets of workers with differing employment terms and conditions.

Labor sympathizers, in turn, opposed the PCC Structurals standard, arguing that it undermined workers’ right to self-organize under the National Labor Relations Act and challenging the claim that Specialty Healthcare led to a drop in the median size of bargaining units. The dissenting members in PCC Structurals, which included now-Chairman McFerran, wrote, “The extent of employees’ freedom of association (which, by definition, includes the freedom not to associate) is not a matter for employers to decide.”

The two Democrats joining McFerran on the NLRB both have extensive experience representing labor organizations.

Wilcox, who made history as the first Black woman to serve as an NLRB member, most recently served as a partner at the union-side law firm of Levy Ratner, associate general counsel of 1199SEIU United Healthcare Workers East, and as a labor representative to the New York City Office of Collective Bargaining. She filled the seat vacated by Republican appointee Mark Pearce in 2018.

Prouty, who formerly served as general counsel of unions, including (SEIU) Local 32BJ, the Major League Baseball Players Association, UNITE, and UNITE HERE, replaced outgoing Republican member William Emanuel.

Given the uncertainty around the future of the community of interest standard, what steps can companies take to prepare for a change in policy?

• Analyze your workforce, considering whether divisions exist among your workers that might lead subgroups to organize as distinct units.

• Minimize the risk that workers would seek to organize by promoting a healthy work environment, including providing competitive wages and benefits, resolving workplace issues sensitively and efficiently, and ensuring your employee handbook and other policies are clear, accessible, and up to date.