A Trump-era standard that prevented unions from organizing “micro units” that can include subsets of the overall workforce has been overturned in a decision issued by the National Labor Relations Board.
In the Dec. 14 decision pertaining to American Steel Construction, Inc., the NLRB modified the test used to determine whether additional employees must be included in a petitioned-for unit to render it an appropriate bargaining unit. In the decision, the board reaffirmed its long-standing principle that employees in the petitioned-for unit must be “readily identifiable as a group” and share a “community of interest.”
Sometimes a party argues that a proposed micro unit that includes those criteria must include additional employees. According to the board, the burden is on the objecting party to show that the excluded employees share an “overwhelming community of interest” to mandate their inclusion in the bargaining unit.
The decision is significant “because it could help organized labor establish footholds in businesses where only a small group of employees are seeking union representation,” according to an article by Fisher Phillips attorneys Steven M. Bernstein, regional managing partner, and Joshua H. Viau, partner. “This could mean, for example, that departments within the overall operation may be able to organize regardless of their level of integration with the overall workforce,” they said.
According to the attorneys, the ruling clips employers’ wings by allowing unions to get a foot in the door with micro units and then expand their efforts throughout the organization.
“The board’s task in assessing the appropriateness of bargaining units is to ensure that workers enjoy — in the words of the National Labor Relations Act — ‘full freedom of association,’” NLRB Chair Lauren McFerran stated.
NLRB members Marvin E. Kaplan, Gwynne A. Wilcox and David M. Prouty agreed with McFerran. Board members Marvin E. Kaplan and John F. Ring dissented.
The decision follows the board’s December 2021 notice and invitation to file briefs addressing whether the board should reconsider its standard.
