Here We Go Again: NLRB Foreshadows A Potential Return To Micro-Units

• Published date: 14 December 2021
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Proskauer Rose LLP
• Author: Mr Joshua Fox, Mark Theodore and Timothy Kelly

The ability to form smaller bargaining units by breaking up larger aspects of an employer's organization-sometimes called "micro-units"-is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize. Those opposed to the practice, including both employers and trade groups, contend that carving out a small portion of an employer's workforce into a bargaining unit fractures the workplace and thereby undermines both productivity and workers' rights.

Whether a "micro-unit" is permissible under the National Labor Relations Act ("NLRA")-like so much else in labor law during the last several years-depends on timing. Longstanding rules of bargaining unit make-up have changed drastically with the change of administrations.

In 2011, the Board lowered the bar for unions to organize smaller groups into bargaining units, notwithstanding decades of precedent to the contrary. In 2017, the Board restored the pre-2011 standard for evaluating the appropriateness of a petitioned-for bargaining unit. We have discussed these cases in detail here, here and here. On December 7, 2021, in American Steel Construction, 371 NLRB No. 41 (2021), the Board invited public input as to whether it should reconsider that standard once more and possibly revert back to the 2011 rule making it easier for unions to organize employees into micro-units. The Board's recent request to the labor-relations community for amici briefing foreshadows that it likely will adopt the 2011 model that permitted "micro-units."

Procedural History

Local 25, International Association of Bridge Structural, Ornamental, and Reinforcing Iron Workers, AFL-CIO, filed a petition on November 18, 2020, seeking to represent a bargaining unit composed of the full- and regular part-time journeymen and apprentice field ironworkers employed by American Steel Construction, Inc. Citing PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Company, 368 NLRB No. 67 (2019), the Region held that the community of interest shared among employees encompassed by the proposed unit was not sufficiently distinct from the interests of other employees excluded from the petitioned-for unit.

Accordingly, the Region agreed with the Employer that the petitioned-for unit was inappropriately narrow in scope, adding that the appropriate unit would include American Steel's fabrication shop employees, painters, and drivers. Noting that the Union declined to represent that broader...