In the next installment of our Labor and the Law Blog, RQN Attorney Zachary Wiseman answers common employer questions and educates about the basics of NLRA Compliance.
Late last year, the National Labor Relations Board (the “Board”) made it much easier for your business to be unionized. In the American Steel Construction, Inc. case, the Board reinstated an Obama-era rule that makes it possible for small groups of employees in your business to join a union even if the vast majority of your employees want to remain union free. American Steel Construction, Inc. 372 NLRB No. 23 (December 14, 2022). How did we get here and what are the possible risks for your business?
Section 7 of the National Labor Relations Act (the “Act”) sets for the “rights” of employees to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and . . . to refrain from any or all of such activities . . . “ National Labor Relations Act, 29 U.S. Code §157. In other words, the Act protects the ability of employees to freely choose whether or not to form or join a union – something the NLRB website describes as “workplace democracy.” https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act.
Until 2011, unions targeted businesses by identifying a proposed unit of employees who shared a “community of interest.” Because most employees in the same company are typically subject to the same terms and conditions of employment as their co-workers (wage rates, policies and procedures, etc.), employers could in many cases challenge a proposed unit that, by targeting a pro-union department, inappropriately excluded other similarly situated employees in the business. This approach preserved the right of employees to freely choose whether or not to unionize, but also prevented small pockets of disgruntled employees from forming unions in an otherwise non-union company. Most employers would argue that “workplace democracy” demands that the maximum number of employees participate in the vote regarding unionization. Employers are also understandably concerned about managing a business where different rules (union and non-union) may apply to different groups of employees. Finally, greater numbers of voters arguably help to nullify the loud voices of a few disgruntled employees who may be more inclined to join a union.
In 2011, the Obama-Era Board issued the Specialty Healthcare decision. Specialty Healthcare & Rehabilitation Center of Mobile (357 NLRB 934 (2011). Under this decision, the Board upended the traditional “community of interest” analysis and instead ruled that an employer could only successfully object to a proposed unit if it could show that the proposed unit shared an “overwhelming community of interest” with the employees not included in the proposed unit. Id. at 944. This is a standard that is difficult if not impossible to meet. The decision resulted in union campaigns targeting small pockets of employee working within significantly larger employee pools who were not interested in unionization. The Union strategy is clear – get a foot in the door of a business where the majority of all employees are against unionization.
The Board returned to the traditional community of interest standard during the Trump administration – again making it harder for Unions to organize small, isolated units or departments of employees. However, in its December 14, 2022 ruling in American Steel, a divided Board once again ruled that employers challenging a proposed bargaining unit must show that any employees excluded from the union’s proposed unit share an overwhelming community of interest with employees in the proposed unit– even if the proposed unit represents a small fraction of the total employees. In a statement on the Board’s website, Board Chairman McFerran defended the about face in American Steel by asserting that the ruling would have the effect of “ensuring that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.” https://www.nlrb.gov/news-outreach/news-story/board-modifies-framework-for-appropriate-bargaining-unit-standard.
What does this mean for your business? Unfortunately, a small group of disgruntled employees could identify their small unit, department, shift or section as an appropriate unit. Unless you could show that employees in other units, departments, shifts or sections shared an “overwhelming community of interest” with the unit seeking unionization, the Board would likely proceed with an election. If a majority of the voting employees in this “micro unit” voted in favor of unionization, you would be required to meet and bargain with the union regarding the terms and conditions of employment for this small group of employees. You could end up with one group of employees operating under vastly different employment terms and conditions from their non-union co-workers in the very same facility. What can you do to minimize the risk of micro unit organizing? While there are no clear answers, there are organizational, operational and management changes you can implement to minimize your risk. Examples include minimizing departmentalization and maximizing cross utilization and the functional integration of your workforce. It is also essential to regularly train supervisors about best practices to limit the risk of potential union campaigns. Employers who feel they may be targets for union organizing efforts – particularly if you have been a target in the past – should contact legal counsel to discuss strategies for minimizing your risk of a micro unit organizing campaign.
D. Zachary Wiseman
Mr. Wiseman is a Shareholder in the Firm’s Employment and Labor Section. He is an experienced labor and employment attorney whose practice is primarily focused on assisting both private and public employers with a wide range of labor and employment issues. Mr. Wiseman’s labor experience includes the representation of management in collective bargaining, labor arbitrations, unfair labor practice charges, and representation elections.