Ideologically Recalibrated NLRB Restocks Union Organizing Toolbox

An ideologically recalibrated National Labor Relations Board (“NLRB”) implemented an important right for labor unions who seek to organize a bargaining unit comprising less than a full complement of a location’s workers. Whether union organizers face significant opt-out rates among the workforce or there are other legitimate reasons to exclude portions of the employee complement, the path to unionization became much easier after the NLRB’s December 14, 2022 decision.

Who Needs to Keep Reading?

Any employer nationwide preparing for, concerned about, or currently involved in union organizing activity within their workforce. This decision will likely affect the strategies taken to combat organizing efforts and to contest them before the NLRB.

What Happened?

In the recent decision American Steel Construction Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO (the union commonly known as the Ironworkers”), the NLRB held that employers who wish to broaden a proposed bargaining unit beyond the union’s desired complement (usually to defeat organizing efforts) must demonstrate the excluded employees have an overwhelming community of interest” with the union’s narrower proposed group.

The essential ruling in this NLRB decision effectively switched the burden when determining the applicable bargaining unit from the union to the employer. Now, if the employer wishes to contest a proposed bargaining unit, it has the burden to show the union’s proposed unit is improperly narrow under the new overwhelming” standard. Before the American Steel decision, it was the duty of the union to demonstrate that workers who were included and excluded from a proposed bargaining unit had sufficiently distinct” interests from one another. As the prior standard was favorable to employers seeking to defeat union organizing efforts or at least minimize the number of unions involved with their workforce, the new standard is overwhelmingly beneficial to labor unions’ ability to organize a bargaining unit in a manner of their choosing. Accordingly, unions will be able to organize a workforce in piecemeal and/or in groups of employees sized to ensure winning union certification elections.

In all, the NLRB will use the following factors when determining whether to approve a petition for a bargaining unit subdivision”: whether the petitioned-for unit (1) shares an internal community of interest; (2) is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct. If an employer challenges a union’s subdivision petition, the NLRB will apply community-of-interest factors to determine whether there is an overwhelming community of interest” between the petitioned-for and excluded employees.

What Are The Probable Impacts of the Ruling?

For more than a decade, employers have been able to combat bargaining unit subdivisions where not all of a location’s employee complement is part of the same (or any) union (what some call micro bargaining units”) due to the prior standard that the union make a showing that a proposed unit subdivision was sufficiently distinct” from excluded employees. It is likely that unions will increase their attempts, and their success rate, at creating bargaining unit subdivisions within workforces. A subdivision comprised of employees in more similar circumstances will have a higher likelihood of being ratified by the proposed bargaining unit. This is in part because the union can more easily design the bargaining unit to exclude workers that are against unionization.

In all, and depending on the number of years this change remains the NLRB standard, employers campaigning against unionization will have to be prepared with evidence to meet the overwhelming community of interest” standard to expand a proposed bargaining sub-unit. If employers can meet the standard, they theoretically expand the likelihood of defeating the unionization vote and decreasing the number of unions or bargaining units in a single workforce.

Haven’t We Been Here Before?

Yes. In this decision, the NLRB explicitly reinstated what is known as the Specialty Healthcare standard implemented in 2011 under the Obama administration. In the most recent republican administration, Specialty Healthcare was overturned in favor of the pro-employer standards articulated in the PCC Structurals (2017) and Boeing (2019) decisions. In the Biden-led administration, in which the majority of the NLRB again leans Democratic, collective bargaining determinations return, in part, to an Obama-era standard.