NLRB to Revisit “Micro-units” Test

Eric Paltell
Eric Paltell
12/13/2021

On December 7, 2021, the National Labor Relations Board (“NLRB”) announced that it will revisit the “community of interest” standard for determining an appropriate bargaining unit. American Steel Construction, Inc., 371 NLRB No. 41 (2021). In so doing, the Board expressed a willingness to consider a return to the “micro-units” that were allowed under the Specialty Healthcare standard it overruled in 2017.

American Steel Construction involved a petition filed by the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 25.  The union sought to represent a unit of full-time and part-time journeyman and apprentice field iron workers. The employer argued that the petitioned-for unit was inappropriate under the Board’s PCC Structurals and Boeing Co. standards, and should properly have included fabrication shop employees, painters, and drivers (essentially, a plant-wide unit).  The Regional Director agreed with the employer, finding that the unit of petitioned-for employees did not share a “sufficiently distinct” community of interest from the other employees. Accordingly, the Regional Director dismissed the petition, and the union filed a Request for Review.

The Democrat-appointed Board majority (Chairman McFerran and Members Wilcox and Prouty) granted the Request for Review, with Members Ring and Kaplan dissenting.  The Board found that the union “raised substantial issues warranting review of the Regional Director’s conclusion that the petitioned-for unit was inappropriate.”   The Board invited the public to submit briefing on whether PCC Structurals and Boeingshould be overturned, as well as whether or not the Board should return to the 2011 Specialty Healthcare standard.

In the event the Board reinstates Specialty Healthcare, unions should find it easier to organize. The Specialty Healthcare standard holds that a petitioned-for unit – no matter how small – will generally be appropriate if the employees have an internal community of interest, unless the employer shows that the excluded employees share “an overwhelming community of interest with those in the petitioned-for unit.”  This allows for unions to organize small groups of workers in a facility (such as the case where the Board approved a unit consisting only of employees from a Macy’s cosmetics and fragrances department,  361 NLRB. No. 4 (2014)), meaning less employee support is needed for the union to win. It also means employers may be faced with multiple bargaining units represented by different unions within the same facility.

While the Board has not made a final decision on what standard it will apply, employers should expect a return to some variation of Specialty Healthcare when a ruling is issued.

 

 

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