The National Labor Relations Board on Wednesday revived an Obama-era standard that will make it easier for unions to organize employees and win elections. In a 3-2 decision in American Steel Construction Inc., the Board resurrected the standard developed in a 2011 case called Specialty Healthcare for analyzing appropriate bargaining units. This framework applies when a union seeks to represent some – but not all – job classifications in a particular workplace and makes it easier for unions to organize so-called “micro-units” (or smaller groups) of employees.
Under Specialty Healthcare, employees seeking union representation must be “readily identifiable as a group” and share a “community of interest.” Where a party opposing representation, usually the employer, argues that the proposed unit must include additional employees in the workplace, the burden is on that party to show the excluded employees share an “overwhelming community of interest” to mandate their inclusion. In other words, employers have a difficult road ahead. If a union seeks to represent only one or two job classifications or one small department in a particular plant, facility or store, an employer opposing such representation must prove that the excluded jobs or departments “overlap almost completely” in terms and conditions of employment with the included ones to mandate inclusion.
The Board’s decision this week overturns a Trump-era case called PCC Structurals that overturned Specialty Healthcare and shifted the burden to unions to show workers in their proposed units have “sufficiently distinct” interests from those of the excluded employees. PCC Structurals’standard was further refined in a 2019 decision called The Boeing Co.
Critics of Specialty Healthcare say allowing unions to form “micro-units” of employees makes collective bargaining and management of the workplace more difficult for employers. Critics also believe that Specialty Healthcare favors unions by allowing them to tailor their representation petitions based on narrow areas of support, as opposed to what makes the most sense for collective bargaining. In their dissent in American Steel Construction, NLRB Members John Ring and Marvin Kaplan accused the majority of prioritizing the organizing desires of unions when it should be acting in a neutral role. But the majority reiterated that its inquiry considers “only whether the requested unit is an appropriate one even though it may not be the optimum or most appropriate unit for collective bargaining.”
American Steel Construction involved a petition by the Ironworkers union to represent a unit of journeymen and apprentice field ironworkers at the plant. The employer asserted the proposed bargaining unit was inappropriate because it excluded other employees at its plant, including painters, drivers and inside fabricators. The Board did not decide whether the unit was appropriate but remanded the case to the regional director to render a decision applying Specialty Healthcare. The decision will apply retroactively to all pending representation petitions.
American Steel Construction, Inc. is the second major decision issued by the NLRB this week. On Tuesday, the Board expanded the scope of its traditional “make-whole” remedy – historically limited to reinstatement and back pay – to include consequential damages resulting from unlawful discharges. Our coverage of that decision can be viewed here.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
[View source.]
