NLRB REOPENS DOOR TO UNION ORGANIZING OF “MICRO UNITS”

Many labor relations rules under the National Labor Relations Act (NLRA) become political footballs; when a Republican-majority panel is in place, the National Labor Relations Board (NLRB) will institute a rule that is management-friendly, and when Democrats assume majority status they will implement a more labor-friendly rule.  Such is the case with the question as to the organizing of small “micro units” within the workplace. 

Unions prefer the ability to organize micro units. If the union determines that a small but distinct group of employees (as opposed to the entire eligible workforce within the company) is in favor of unionization, the union may seek to organize that small group, which increases the union’s chance of success and also, in some cases, gets the union’s foot in the door of that company.  For those very same reasons, employers are not generally in favor of the organizing of micro units; employers also point out that this may create inconsistent standards with respect to wages, benefits, etc. with respect to categories of workers who are not-so-very-different in terms of job functions. 

A Trump-era precedent had established a tightened standard for the organization of micro units, requiring a union to demonstrate that a larger unit proposed by the employer was inappropriate under the circumstances. 

In American Steel Construction, Inc., the NLRB on December 14, 2022 replaced that standard with a loosened rule that hearkens back to the standard utilized during the Obama administration.  Under this everything-old-is-new-again standard, the union may propose a bargaining unit, and the unit proposed by the union will only be expanded if the employer can demonstrate that some group of additional employees shares an“overwhelming” community of interest with the employees in the proposed unit. 

2022 has already witnessed an increase in the success of union organizing efforts throughout the United States.  The American Steel Construction standard will only make union organizing easier, and we can certainly expect to see a flurry of micro unit proposals in the immediate future. 

Well, you might say… what can we do to avoid a micro unit in our workplace?  First, it should be noted that even the NLRB Chair, Lauren McFerran, has noted that the rule is intended to ensure “that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.”  To increase the likelihood of expanding a micro unit into a larger group, employers should evaluate the community of interest among their workers.  Items such as commonality of supervisors, similar terms and conditions of employment, and the swapping of workers in and out of work areas may be utilized to strengthen an argument that the micro unit proposed by the union does not include other necessary workers who share a community of interest with a selected group. 

We expect the trend of increased union activity to continue for the foreseeable future, and with that in mind, getting out ahead of any potential union organizing attempt is a best practice to ensure that you are not caught unawares when the union shows up at your door. 

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.