On Wednesday, the National Labor Relations Board modified the standard used to determine whether a “petitioned-for” bargaining unit is appropriate for union representation when a party contends that the unit is inappropriate because other employees must be added. The new standard will make it easier for unions to obtain representation elections in relatively small bargaining units, increasing the likelihood that the workforce will have piecemeal representation and that employers may have to bargain with more unions and deal with more bargaining units, even within a single worksite.

The standard announced yesterday overrules a standard adopted by the Trump Board in 2017, and returns to a standard first announced in a 2011 NLRB decision during the Obama Administration, Specialty Healthcare.

Under the new/old standard, an election in what is sometimes called a “micro-bargaining unit” will be approved unless the party arguing against it shows that other employees must be included because they share an “overwhelming community of interest” with the employees in the petitioned-for unit.

Members Gwynne Wilcox and David Prouty, along with Chair Lauren McFerran, all Democrats, made up the Board majority. Members Marvin Kaplan and John Ring, both Republicans, dissented.

In statement on the Board’s website, Chair McFerran said,

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.” . . . 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.

The practical effect of the Board’s return to the Specialty Healthcare standard is that unions can attempt to gain representation in so-called “micro-bargaining units,” thus sometimes “cherry-picking” small groups of employees for NLRB elections instead of seeking support in larger groupings that make more sense for employees in order to have meaningful bargaining and for unions and employers to have efficient bargaining and operations flowing from it. Examples of “micro-bargaining units” have included a relatively small shoe department of less than 20 employees in a much a larger department store, and a relatively small repair technician department in a much larger warehouse operation. Critics of the resurrected Specialty Healthcare standard point to fractured workforces and operations, and balkanization of policies and shop rules, this can lead to inefficiencies in the workplace that can ultimately harm not only employers but also employees -- both those in the micro units, and those who are outside the units.

Employers may be wise to survey their operations and build “overwhelming” communities of interest into their workforce groupings to avoid the potentially harsh results that may come from workforces being chopped up into “micro-bargaining units.”

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