NLRB Returns to Obama-Era 'Micro-Unit' Standard for Union Organizing
Ruling makes it easier for union organizers to unionize a smaller workgroup, department or classification within larger companies or workgroups.
In a long-expected return to an Obama-era standard of allowing unions to unionize so-called ‘micro-units’ within larger workplaces, the National Labor Relations Board (NLRB) announced on Wednesday that it had “modified the test used to determine whether additional employees must be included in a petitioned-for unit in order to render it an appropriate bargaining unit.”
The NLRB’s inquiry will “consider only whether the requested unit is an appropriate one even though it may not be the optimum or most appropriate unit for collective bargaining.” — National Labor Relations Board, Black & Decker Mfg. Co., 147 NLRB 825, 828 (1964)
The decision (American Steel Construction, Inc.) returns the NLRB to its prior test governing such determinations, as set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), overruling PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019), according to the NLRB’s press release.
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.” However, where a party argues that a proposed unit meeting these criteria must include additional employees, the Board reaffirmed that the burden is on that party to show that the excluded employees share an “overwhelming community of interest” to mandate their inclusion in the bargaining unit.
“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,’” said Chairman Lauren McFerran. “Returning to the Specialty Healthcare standard is consistent with this principle, ensuring that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.” [Emphasis added.]
A Return to Micro-Units
The NLRB’s decision provides unions with the ability to, once again, unionize workers into so-called ‘micro units.’
“A micro-unit,” as explained by the attorneys at Duane Morris, “is a small subset of a larger group that shares a community of interest. Micro-units may be as small as a single classification or employees who share the same job title. Generally, unions find it easier to organize a micro-unit than a larger group of employees, even though the larger group shares the same community of interest. The issue of whether the Board should permit micro-units has been a pendulum.” [Emphasis added.]
In 2011, the Obama-era Board overturned decades of precedent in Specialty Healthcare and not only said it would permit micro-units but also broadened its application to all industries, not just healthcare. In 2017, the Trump-era Board reversed Specialty in PCC Structurals and The Boeing Company.
The NLRB will use the standard retroactively in pending union representation petitions, reported Bloomberg.
A Simple Example: Mom & Pops Diner
Under the return of the micro-unit organizing model, it will again be possible for unions to unionize single departments or job classifications within a workplace.
If, for example, a ‘Mom and Pop’ diner employs six employees—two dishwashers, two cooks, and two waitstaff—it will be possible for each classification to be unionized into three individualized bargaining units (or ‘micro units’) and, quite possibly, by three different unions.
This means that ‘Mom and Pop’ could end up having to negotiate three separate bargaining agreements. It is also possible that there could be two separate agreements and one labor dispute, or any combination of possibilities.
Read the NLRB’s full press release here.