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The Labor Law Insider: The Biden Administration - Expected Changes at the NLRB (Part III)

 
Podcast

In the two previous Labor Law Insider Series podcasts, we’ve discussed the Biden Administration’s priority of strengthening unions and creating an environment more favorable for the creation of unions. Recent changes at the National Labor Relations Board (Board) include the confirmation of Jennifer Abruzzo as General Counsel and two new nominations, Gwynne Wilcox and David Prouty, to positions on the five-member Board. Confirmation of the latest nominees is expected in late September and if both are confirmed, will secure a Democratic majority on the Board. 

In episode three, David Hertel and Laura Malugade discuss, with Tom Godar, two potential developments that would change the labor law landscape and enhance union organization efforts: 1) permitting unions to organize and represent small units of employees within an employer’s workforce called micro-units, and 2) union efforts to organize remote workers.  

Tune in to the third episode in our series to learn about these potential developments and strategies to proactively address the expected changes. For an overview of our third episode, a summary of the discussion is provided below.

    

Remember to subscribe to our Labor Relations Law Insider blog to listen to our monthly Labor Law Insider podcasts and receive regular updates on labor law matters.

SHOW NOTES

The NLRB and Micro-Units

Precedent Prior to Specialty Healthcare

Prior to 2011, when a union petitioned to represent a unit of employees and the employer challenged the unit as being inappropriate because it excluded various other classifications of employees at the employer’s workplace, the National Labor Relations Board followed what is known as the traditional “community of interest” test to analyze whether the unit proposed by the union was an appropriate unit for purposes of collective bargaining. Under such test, the Board looked to whether the employees in the proposed unit shared a community of interest sufficiently distinct from the interests of employees excluded from the unit to warrant a finding that the proposed unit constituted a separate appropriate unit. To determine if employees shared a community of interest, the Board looked to the similarity of the wages, benefits, skills, duties, working conditions, and supervision of employees between those employees in the proposed unit and those excluded from the unit.

If the unit proposed by the union was too narrow, meaning it excluded employees that shared a sufficient community of interest with the employees in the proposed unit, the Board would find the proposed unit inappropriate. This traditional community of interest test often prevented a union from organizing just a small segment of an employer’s workforce.

Specialty Healthcare’s Creation of Micro-Units

In 2011, the Obama-era Board changed the law dramatically in Specialty Healthcare when it held that if an employer wished to add additional employee classifications to the unit proposed by the union, the employer was required to show that such employees outside the proposed unit shared an “overwhelming community of interest” with those employees in the proposed unit. If the employer could not demonstrate that to be the case, the Board would find the union’s requested unit appropriate.

As applied by the Board, this “overwhelming community of interest” standard was difficult for employers to meet, resulting in unions being able to organize smaller segments of an employer’s workforce (so-called “micro-units”).

Current Standard

In 2017 during the Trump Administration, the Board decided PCC Structurals which reversed Specialty Healthcare. In PCC Structurals, the Board reinstated the traditional community of interest standard that existed prior to 2011. Subsequently, in 2019, the Trump Board in its Boeing decision set forth a three-step process for applying the traditional community of interest test. Under Boeing:   

  1. The Board will assess whether the employees in the petitioned-for unit share a sufficient community of interest under the traditional community of interest test.
  2. The Board will compare the employees included and excluded from the petitioned-for unit and determine whether the excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with employees in the petitioned-for unit. If the employees excluded from the petitioned-for unit do not have meaningfully distinct interests that outweigh the similarity with employees in the petitioned-for unit, the Board will find that the petitioned-for unit is inappropriate.
  3.  The Board will consider guidelines that the Board has established for specific industries regarding appropriate unit configurations.

The Board’s decisions in PCC Structurals and Boeing have made it easier for employers to stop union attempts to represent smaller units (micro-units) of employees within a facility or operation.

Expected Change

The Democrats are likely to make up a majority of the Board within the next couple of months, and when that happens, it is likely that the Board will eventually return to the Specialty Healthcare standard. Under this standard, unions will be able to more easily organize smaller groups of employees based on, for example, employee classifications or departments within a facility or operation.

Bargaining Unit Determinations with a Remote Workforce

Current precedent: The National Labor Relation Board applies its traditional "community of interest" test (referenced in more detail above) to determine who should be included and excluded from a bargaining unit. In doing so, the Board presumes that a bargaining unit limited to a single physical location is appropriate, which means that we generally see bargaining units that are limited to one particular facility or location of employment. 

Expected change: As many companies settle into long-term remote working arrangements with employees, we anticipate an increase in union organization efforts involving remote workers. At this point, it is unclear how the Board will apply the community interest test to workforces with multiple locations that are made up in whole or in part by remote workers. Depending on the facts at issue, some prior Board precedent suggests that the Board may limit bargaining units based on a certain geographic territory, but others speculate that we will start to see organization attempts around occupations and job responsibilities rather than a physical, geographic location. 

Who would be affected: Any companies with employees who work remotely either in whole or in part. 

Potential strategies: Both union and non-union employers should consider various factors that may impact the appropriateness of a bargaining unit in the event of a union organizational effort or unit clarification petition involving remote workers, including, for example, the extent of interaction between remote workers, the locations to which remote workers report in person if at all, the locations of the remote workers' managerial team, and the similarity of job responsibilities, wages, and benefits. 

Contact us

The Husch Blackwell’s Labor & Employment team can help negotiate the significant changes in labor law that are expected to occur. Contact Tom Godar, David Hertel, Laura Malugade or your Husch Blackwell attorney.

Professionals:

Thomas P. Godar

Partner

David C. Hertel

Partner

Laura L. Malugade

Senior Associate
 

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