In what stands as a return to the Obama-era “Micro-Union” standard, the National Labor Relations Board (the “Board”) replaced the current standard of determining the composition of bargaining units to a much more union friendly standard. The case is American Steel Construction which replaces the current business-friendly standard and returns the Board to the standard previously utilized in Specialty Healthcare. This change will allow unions to select smaller units to unionize, which statistically gives them a much better chance to win the unionizing election.
In reaching its decision, the majority overturned the Trump-era rule set forth in the 2017 decision of PCC Structurals. The Trump rule shifted the burden from employers to unions to show workers in their proposed units had “sufficiently distinct” interests from excluded workers in a bigger unit, and the bigger unit would undercut workers’ right to organize along the lines of their choosing. The majority stated in its American Steel Construction decision, “PCC Structurals’ reasoning fits poorly with the policy goals of the [National Labor Relations] Act, with Supreme Court precedent, and with the ‘traditional’ test it purported to restore.”
As many readers know, when a union looks to unionize a workplace, it first proposes to the Board which workers should be included in the bargaining unit. Historically, the bargaining unit would entail workers that were “appropriate for the purposes of collective bargaining.” In most cases this would mean all employees at a given facility.
The challenge for unions has always been that it is harder to unionize larger groups of workers than smaller groups. The union’s problem was addressed in 2011, with the decision in Specialty Healthcare. Specialty Healthcare permitted unions to pick and choose which workers constituted the appropriate group for bargaining purposes. Once the bargaining unit was selected by the union, the burden shifted to the employer to show that an excluded employee shared “an overwhelming community of interest” with the unit handpicked by the union to warrant inclusion – a standard which proved almost impossible to meet.
Many fear the decision in American Steel Construction will lead to a return to unreasonable fractured bargaining units allowed under Specialty Healthcare. A 2016 report by the U.S. Chamber of Commerce, highlighted examples of poorly constructed bargaining units that were approved during the time of Specialty Healthcare.
- Macy’s Department Store where the Board allowed a bargaining unit that included just cosmetics and fragrance sales associates but excluded all other sales associates.
- A Bergdorf Goodman store with a bargaining unit that consisted just of women’s shoes salespeople and excluded men’s shoes salespeople.
Time will tell if the ruling in American Steel Construction will result in similar results found under Specialty Healthcare. In fact, in today’s pro union environment, it is not hard to imagine it actually being worse.
Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
