Employers beware: Pendulum continues to swing in favor of unions

Since President Biden took office and subsequently appointed union attorney Jennifer Abruzzo to the General Counsel role, the National Labor Relations Board (the “Board” or “NLRB”) has issued pro-union decision after pro-union decision, several of which reversed Trump-era precedent. The trend continued this past week as the Board issued a series of consequential decisions.

Two of the recent decisions overrule standards set by the Trump-era Board by reviving standards set during the Obama-era Board. A third decision creates an entirely new remedy for unfair labor practices. The fourth decision reaffirms existing limits on an employer’s ability to question employees in relation to unfair labor practice proceedings.

American Steel Construction, Inc. – Micro-units revived

In American Steel Construction, Inc., the Board revived the concept of collective bargaining “micro-units,” a tool used to organize a workplace more easily. The American Steel Construction decision overturns Trump-era precedent and reinstates the labor-friendly standard set by the Obama-era Board in Specialty Healthcare & Rehabilitation Center of Mobile, which allowed unions to more easily organize a small segment of an employer’s workforce (i.e., micro-units).

Under the Specialty Healthcare standard, if a union petitioned for an election among a group of employees, it merely needed to show the group they organized represented a “readily identifiable” group based on job classifications, departments, functions, work locations, skills, or similar factors. If the union made such a showing, the burden then shifted to the employer to make a near-impossible showing: that employees outside the micro-unit “shared an overwhelming community of interest” with the petitioned-for employees. Put differently, the standard required employers to show the interests between the petitioned-for and excluded employees “overlap almost completely.”

The Specialty Healthcare standard was struck down by the Trump-era Board in PCC Structurals, Inc. Under PCC Structurals, a small group of the workforce could only form a collective bargaining unit to the exclusion of other employees where the excluded employees had “meaningfully distinct interests in the context of collective bargaining that outweighs similarities” with the employees included in the proposed bargaining unit. The standard made it much more difficult for labor organizations to organize micro-units.

The American Steel Construction decision marks a return to the “overwhelming community of interest” standard articulated in Specialty Healthcare. Consequently, unions will once again have an easier path to establishing footholds in workplaces even where a majority of employees do not desire representation. Employers who may be subject to micro-unit organizing should plan to implement measures that will make splintering its workforce more difficult.

Key Takeaways

The current NLRB has made it clear that it will seek to overturn long-standing precedent in many other areas. As such, it cannot be overstated how important it is for employers to stay abreast of pertinent developments in NLRB law.

The NLRB’s recent decisions raise new concerns for employers, including an increased likelihood of union attempts to organize small bargaining units and greater challenges in defending unfair labor practice charges. Employers should consider undertaking union organizing risk assessments and placing a greater emphasis on their union avoidance efforts to curtail organizing efforts in their workplaces.

Moreover, in the event employers find themselves facing unfair labor practice charges, they should ensure their investigation is documented in writing from start-to-finish, including the Johnnie’s Poultry safeguards. Finally, in evaluating potential liability for any unfair labor practice charge, employers must consider both the expanded range of remedies available for workers and also the likelihood of more protracted litigation based on the new remedy.

Joe Boone, MBA, SPHR, SHRM-SCP, CPC is the CEO and Chief Ethics and Compliance Officer of Strategic HR Solutions, LLC.In addition to serving as a Marine Corps Officer for 20 years, he has worked in various areas of human resources management since 1995.

Joe and his team publish a weekly blog on their website regarding HR news and views that may be of interest to local business owners and anyone else with a passion for human resources.

Visit their website at www.strategic-hrsolutions.com for more information.