NLRB Votes To Adopt Relaxed Standard To Organize “Micro-Units”
The National Labor Relations Board recently voted 3-2 to adopt a relaxed standard for workers to form smaller (and separate) bargaining units within their respective workplaces, also referred to as “micro-units.”
As a practical matter, “micro-units” are easier to organize than larger units and ultimately provide unions the advantage of acquiring a foothold on various workplace conditions that could impact a larger group of employees. This decision is expected to have far-reaching ramifications across the collective bargaining landscape.
The new decision (American Steel) effectively reversed two key Trump-administration decisions (PCC Structurals and The Boeing Co.), which implemented a more exacting legal standard to approve the formation of a micro-unit. The decision also revived the previous standard established in the NLRB’s 2011 Specialty Healthcare decision, signaling yet another a pro-union shift by the Board’s Democratic majority.
Under the PCC-Boeing framework, the NLRB’s approval of a micro-unit hinged on whether members of the proposed unit and excluded workers possessed “meaningfully distinct interests” that outweigh any similarities between the two groups. In contrast, the Specialty Healthcare standard re-implemented by the Board in American Steel focuses on (1) whether the employees in the proposed micro-unit share the requisite “community of interest” and (2) whether the employees comprising the proposed unit are “sufficiently distinct” from other employees who were excluded from the unit; employers who argue that the micro-unit fails to meet the “sufficiently distinct” threshold must offer proof that the micro-unit and the larger class of workers outside of the proposed unit maintain an “overwhelming community of interest.” Consequently, the more lenient American Steel/Specialty Healthcare standard is sure to simplify workers’ campaigns to organize micro-units in future cases.
The Specialty Healthcare standard will apply retroactively to union petitions filed prior to the American Steel decision that are still pending before the Board. However, rather than applying the standard to the petition at issue in American Steel, the Board remanded the matter back to the regional director assigned to the case to review the petition under the American Steel/Specialty Healthcare criteria.
Two Board members dissented from the majority’s holding, insisting that the Board should leave the PCC-Boeing framework intact as a matter of public policy. Specifically, those Board members were deeply concerned that the Specialty Healthcare standard “focuses almost exclusively” on rubber-stamping union petitions to organize micro-units and virtually ignores the overarching interest of facilitating pragmatic and efficient collective bargaining among the workforce at large. As a takeaway, employers must be particularly mindful of how this decision will likely impact their efforts to oppose the formation of micro-units moving forward and how a micro-unit’s bargaining power has potential to incrementally affect workplace conditions for workers outside of the micro-unit.
Please contact Marcellus Chamberlain or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.
