In an amicus brief filed with the National Labor Relations Board, the Association strongly advised the Board against returning to an Obama-era standard for determining "bargaining unit appropriateness" that could lead to multiple micro or fractured bargaining units within a single employer’s workplace.
Background on “Bargaining Units:” In union representation elections, the NLRB determines which group of employees will vote on—and potentially be represented by—the union, i.e., the “bargaining unit.” A variety of facts and circumstances go into the determination, which often rests upon the extent to which a group has a “community of interest” with a broader group of the employer’s employees. Unions often seek a very narrowly defined bargaining unit because it means fewer votes necessary to win representation. Employers often argue for a broader group out of concern that carving out smaller groups of employees will “balkanize” the workplace and inhibit the ability to adopt uniform policies.
Board considering return to Obama-era rules: The Board invited amicus briefs in American Steel Construction, Inc. to address whether it should return to the Obama Board's standard—set in the Specialty Healthcare decision—that generally enables unions to achieve smaller units where requested. The Trump-era Board rescinded the Obama-era standard and returned to the Board’s traditional test for determining bargaining unit appropriateness.
HR Policy brief argues for traditional standards: The Association urged the Board to retain its current standard which, apart from the short period when the Specialty Healthcare standard was in effect, has been the Board’s traditional approach towards bargaining unit determinations for decades. The Association asserted that the Specialty Healthcare standard resulted in the Board rubber-stamping union petitioned-for units without properly weighing employer interests, and that it empowered unions to gerrymander single workplaces into multiple micro or fractured units making it easier for unions to win representation elections.
A proliferation of micro and fractured bargaining units has several negative implications for all stakeholders, including disruptions to an employer’s integrated production process and prolonged collective bargaining periods with multiple groups of similarly situated employees. Further, the Association argued that the Specialty Healthcare standard violated constitutional rights to due process and equal protection under the law, as it improperly applied different standards to similarly situated unions and employers.
Outlook: The Board will issue a decision in American Steel within the next few months, in which the Board’s Democratic majority is likely to return to some form of the standard under Specialty Healthcare. The decision is likely to be appealed in federal court. The Board has teed up three more requests for amicus briefs on major labor law issues, including independent contractor status, employer workplace rules and policies, and mandatory arbitration agreements. The Association will be submitting briefs in each of these cases in the coming weeks.
