The NLRB continued its reversal of several employee-friendly Obama-era decisions last week. The latest to be kicked to the curb is the “micro-unit” standard found in the 2011 Specialty Healthcare decision.
When a union submits an election petition to the NLRB, the union must identify a legally appropriate group of employees (termed the “bargaining unit”) that it intends to organize. The union typically tries to propose a narrowly-defined unit that provides it the best opportunity to win the election. The employer often wants a unit that includes a broader range of employees, as that unit might be less susceptible to highly-targeted union organizing efforts.
In 2011, the NLRB released the Specialty Healthcare decision, which raised the burden on an employer who challenged the scope of the bargaining unit to prove that the additional workers that the employer wanted to include in the unit shared an “overwhelming” community of interest with the union’s proposed bargaining unit. Because very few groups of employees within a company share an “overwhelming community of interest,” this standard permitted unions to create “micro-units” – unionizing small segments of employees within an employer’s control – which allowed a union to cherry-pick employees in a small section of the company that would provide the union with the best opportunity to succeed in the election. Unions believed this would provide an opportunity for them to get a foothold within the company, increasing the chance of additional successful elections of other subsets of employees in the future. Employers were concerned that they would face increased difficulty negotiating and applying cohesive work rules to their employees when small subsets were represented by unions while other large groups of employees were not. This problem could be compounded if an employer ended up with micro-units represented by different unions.
On December 15, 2017, the Board released its opinion in PCC Structurals, Inc., Case 19-RC-202188, which returned the burden on employers to a pre-Specialty Healthcare standard. Now, employers who dispute the appropriateness of a proposed unit must only show that the employees they wish to add share a community of interest with the union’s proposed unit that is “sufficiently distinct” from the remaining employees who will not be included. This less-burdensome standard should increase the likelihood of a successful challenge to the scope of the proposed bargaining unit and put a limit on unions’ ability to seek organization of “micro-units” moving forward.