The NLRB is hoping that the fourth time is the charm when it comes to designing an enduring standard for determining an appropriate bargaining unit. Last week, the National Labor Relations Board (NLRB) issued a notice in the case American Steel Construction inviting parties and amici to submit briefs addressing whether the board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit.
The NLRB’s struggle to design a workable standard for determining an appropriate bargaining unit began in 2011, when it upended nearly 20 years of precedent in its decision in Specialty Healthcare. The NLRB’s decision in Specialty Healthcare required employer’s challenging a petitioned-for unit to show that employees outside of the proposed unit shared “an overwhelming community of interest” with the employees inside the proposed unit.
This standard gave unions a significant advantage in arranging proposed units, and increased the risk of fractured bargaining units, also known as “micro-units.” These micro-units presented a host of problems, resulting in the exclusion of the interests and rights of some employees from the bargaining process, and potentially conflicting with well-established industry norms.
In 2017, the NLRB addressed these problems by overruling Specialty Healthcare, and restored the traditional community-of-interest test for determining whether a petitioned-for unit is appropriate. Additionally, in 2019 the NLRB introduced a three-part test for analyzing challenges to the makeup of a proposed bargaining unit. This test helped to sharpen and focus the traditional community-of-interest test.
The notice issued this week shows that the traditional community-of-interest test is once again in the spotlight. Whether the NLRB returns to the Specialty Healthcare standard, revises the traditional standard, or creates an entirely new standard remains to be seen. However, the Board’s decision to consider changing this standard, yet again, is further evidence of the NLRB’s ambitious pro-labor agenda under the Biden Administration.
Briefs on the unit-determination standard are due to the Board on or before January 21, 2022. Labor professionals will need to monitor the American Steel Construction case moving forward, and should prepare for the possible effects of a return to a standard that could encourage union organizing in micro-units.
By Nelson Cary and Charles Cohen