Appropriate Bargaining Unit Standard Continues to Perplex NLRB

February 04, 2022

by Nelson Cary, Esq. and Charles Cohen, Esq., Vorys, Sater, Seymour and Pease LLP

The National Labor Relations Board is hoping that the fourth time is the charm when it comes to designing an enduring standard for determining an appropriate bargaining unit. On Dec. 7, 2021, the NLRB issued a notice in the case American Steel Construction inviting parties and amici to submit briefs addressing whether the board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit.

Broadly speaking, an appropriate bargaining unit is a group of two or more employees who may reasonably be grouped together for purposes of collective bargaining. It is a fundamental decision that the NLRB must make in the context of any union organizing effort.

The NLRB’s struggle to design a workable standard for determining an appropriate bargaining unit began in 2011, when it upended nearly 20 years of precedent in its decision in Specialty Healthcare. The NLRB’s decision in Specialty Healthcare required employers challenging a petitioned-for unit to show that employees outside of the proposed unit shared “an overwhelming community of interest” with the employees inside the proposed unit.

This standard gave unions a significant advantage in arranging proposed units, and increased the risk of fractured bargaining units, also known as “micro-units.” These micro-units presented a host of problems, resulting in the exclusion of the interests and rights of some employees from the bargaining process, and sometimes conflicting with well-established industry norms.

In 2017, the NLRB addressed these problems by overruling Specialty Healthcare, and restoring the traditional community-of-interest test for determining whether a petitioned-for unit is appropriate. Additionally, in 2019, the NLRB introduced a three-part test for analyzing challenges to the makeup of a proposed bargaining unit. This test sharpened and focused the traditional community-of-interest test.

The notice issued this week shows that the traditional community-of-interest test is once again in the spotlight. Whether the NLRB returns to the Specialty Healthcare standard, revises the traditional standard, or creates an entirely new standard remains to be seen. However, the NLRB’s decision to consider changing this standard, yet again, is further evidence of the NLRB’s ambitious pro-labor agenda under the Biden Administration.

Briefs from interested parties were submitted to the Board on Jan. 21, and the party’s responses to those briefs are due by Monday, Feb. 7. Employers will need to closely monitor the American Steel Construction case moving forward and should prepare for the possible return of a pro-union standard for analyzing whether a proposed bargaining unit is appropriate, which would permit unions to organize smaller groups of employees.