On Dec. 14, 2022, the National Labor Relations Board (NLRB or Board) issued a decision that (again) modifies its standard for bargaining-unit determination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace. The decision, in American Steel Construction, Inc., revives the Board’s prior test governing such determinations set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which was overruled in PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019).

In its 2011 Specialty Healthcare decision, the Board identified the elements to be satisfied if the proposed union was to be recognized. Among these were that the unit is “sufficiently distinct.” If a party contested the petitioned-for unit on this ground – thereby arguing that certain employees not included in the proposed unit should have been – it would bear the burden of proving that there was an “overwhelming community of interest” between the petitioned-for employees and excluded employees in order to add the excluded employees to the petitioned-for unit. This was a difficult standard for employers to meet and widely recognized as a boon for union organizing.  In the wake of Specialty Healthcare, unusual “microunits” were organized, including cosmetic and fragrance counter employees at a Macy’s department store.  

In its 2017 PCC Structurals decision, the Board overruled Specialty Healthcare and adopted a different test for the “sufficiently distinct” element: instead of the “overwhelming community of interest” test, the Board adopted a test whereby “the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed.” This test therefore removed the burden from the employer challenging the composition of the unit and instituted a balancing test that did not explicitly begin with deference to the petitioned-for unit. The test gave employers far greater ability to oppose recognition of a unit consisting of some, but not all, of the employees within their workplace.  

This week’s decision in American Steel expressly overrules PCC Structurals and Boeing and reinstates the “overwhelming community of interest” standard of Specialty Healthcare. The Board elaborated that this means that when there are only “minimal differences, from the perspective of collective bargaining… then an overwhelming community of interest exists, and that classification must be included in the unit.” The Board indicated that meeting this standard would be akin to showing that “there is no rational basis for the exclusion.” So long as the petitioned-for unit consists of a clearly identifiable group of employees with a shared “community of interest,” the Board will presume the unit to be appropriate. The impact of this decision is to again empower unions and employees to organize along narrower lines of job classification. Even prior to American Steel, employers have seen a significant uptick in organizing activity in the last several years. This decision will likely further invigorate unions to again focus on “micro units” as a path to organizing workplaces, and employers again face the prospects of multiple distinct bargaining units among their employees.

If you have any questions or would like additional information regarding this decision, or other legal developments, please contact Peter Wiltenburg or any attorney in Bond’s labor and employment practice.

On Nov. 2, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking seeking to strengthen protections for unions in the election process. Among other things, the proposal would alter the rules instituted by the Trump Board in 2020 that made it easier for employees to decertify incumbent unions. The proposed changes are purportedly intended to protect workers’ ability to make free choices regarding union representation and to encourage collective bargaining.

Read More >> NLRB Proposes to Roll Back Union Election Rules

It is no secret that private sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.

Read More >> Lessons from Google: What Employers Should Know About Minority Unions

On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration.  Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.

Read More >> NLRB Reverses Three Obama-Era Decisions in One Day

On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015.  The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing.  The final rule will become effective on April 16, 2020.

Read More >> "Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

On August 12, 2019, the National Labor Relations Board (“NLRB” or the “Board”) published proposed rules with the goal of protecting “employees’ statutory right of free choice on questions concerning representation.”  The proposed rules would amend three Board policies and practices that are not currently set forth in its rules and regulations:  (1) the “blocking charge policy”; (2) the “voluntary recognition bar”; and (3) the standard of proof required to convert a Section 8(f) collective bargaining relationship into a Section 9(a) bargaining relationship in the construction industry.

Read More >> The NLRB Publishes Proposed Rules Amending Procedures in Representation Cases

Temporary, contracted-for, or leased employees who are employed by a “supplier,” but are assigned to work at another employer’s premises, currently comprise as much as 5% of American workers, and are among the fastest growing sectors.  Noting this trend, the National Labor Relations Board, in its Miller & Anderson, Inc. decision this week, announced a new standard that makes it much easier for unions to organize these temporary employees working at another employer’s facility; and further, allows them to be organized in a single bargaining unit together with the host employer’s employees who perform similar functions, if both groups share a “community of interest.” The case addressed a petition by the Sheet Metal Workers for a union election among a group of (a) Miller & Anderson’s workers at its Pennsylvania construction site, together with (b) a second group of sheet metal workers employed by a separate company, Tradesmen International, who had supplied additional workers at the site on a contract basis. Under the Board’s newly-liberalized “joint employer” standards promulgated in its recent Browning-Ferris decision, Miller & Anderson was deemed to be the joint employer of its own sheet metal workers on the site and also those provided by contract with Tradesmen International.  By contrast, however, Tradesmen International had no employment relationship at all with the Miller & Anderson employees.  Both groups -- and both employers -- were included by the Board in a single unit, on the ground that they shared a “community of interest” since they worked side-by-side under common working conditions. Thus, the Board’s decision allowed a single bargaining unit of employees even where there would be two different employers at the bargaining table -- with potentially differing interests -- without the consent of both employers.  Further, it authorized for the first time a bargaining unit with two employers, where one (the “supplier” of temporary help) employed only a portion of the unit, but had no employment relationship with the remainder.  The Board’s majority, however, brushed aside concerns raised by dissenting Board Member Miscimarra that this result would be “unworkable” and lead to “confusion and instability,” holding instead that each employer will be expected to bargain over “jointly employed workers’ terms and conditions which it possesses the authority to control.” This decision should be viewed together with the Board’s newly-expanded joint-employer standards articulated in Browning-Ferris (holding that “indirect” or “potential” control over terms and conditions suffices to show joint employer status; “actual” or “immediate” exercise of control are no longer required).  Together, these cases allow proliferation of combined units including not only employees directly employed by an employer, but also temps performing similar functions, in circumstances that may involve only indirect control by the host company, or incidental collaboration with the temp agency.  The decision appears to be yet another element of the Board’s program to broaden opportunities for unionization. At a minimum, employers who are supplied by agencies with temporary, contract or leased personnel -- and agencies who supply these personnel -- must be wary that these arrangements are now targets for union organizing, and that the user of these personnel is more likely to be viewed as jointly employing both groups.  Employers using these personnel, and agencies who supply them, should closely review their contractual arrangements, and the level of control assigned to each employer in practice, with these issues in mind.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision upholding the National Labor Relations Board’s “quickie” election rule.  As we previously reported, the final rule, among other things, significantly reduces the time period between the filing of an election petition to the date of the election, narrows the issues that may be raised at a pre-election hearing, and requires disclosure of employees’ personal information, including personal telephone numbers and e-mail addresses.  The rule was effective as of April 14, 2015. The Associated Builders and Contractors of Texas, Inc. (“ABC”) mounted the challenge to the rule’s lawfulness, asserting that the Board both exceeded its authority under the National Labor Relations Act (the “Act”) and violated the Administrative Procedure Act.  ABC first argued that the rule unlawfully postpones the resolution of certain voter eligibility issues until after the election is complete, in contravention of the Act.  The Fifth Circuit rejected this argument, reasoning that under the plain language of the Act the purpose of the pre-election hearing is to determine whether a question of representation exists -- not to resolve all voter eligibility issues. Next, ABC contended that the rule arbitrarily and capriciously requires the disclosure of employees’ personal information to the petitioning union in violation of the Administrative Procedure Act.  The Fifth Circuit found that the Board had sufficiently considered employees’ privacy concerns as well as the burden on employers when it expanded the disclosure requirement, and thus, the requirement was not arbitrary and capricious in violation of the Administrative Procedure Act. ABC also challenged the rule on the grounds that faster elections interfere with an employer’s right to free speech during organizing campaigns.  In rejecting this argument, the Fifth Circuit found that there is no language in the Act which requires a specified waiting period between the filing of the petition and the date of the election.  Additionally, the Fifth Circuit noted that the Board’s Regional Directors, who are responsible for setting the date of the election, are to consider the interests of both parties when setting an election date, which may include an employer’s opportunity to communicate its views concerning unionization to its employees. Now that the Fifth Circuit has joined an earlier decision from the United States District Court for the District of Columbia upholding the Board’s “quickie” election rule, employers must be prepared to respond before an election petition is even filed.  The time employers have from date of petition to date of election has been effectively cut in half (from about 6 weeks to about 3 weeks), making a successful counter campaign extremely difficult to mount without advance planning and preparation.  We recommend regular supervisory training and the creation of a tentative campaign blueprint that is ready for immediate activation in the event of a union petition.  As before, an employer’s best opportunity to remain union-free comes from early awareness of organizing activity and an effective pre-petition campaign that discourages employees from signing the number of union authorization cards needed for the union to trigger an NLRB election.

In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union.  This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”).  Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. The Board noted that it had never been asked to assert jurisdiction in a case involving college athletes, nor had there ever been a petition for representation of a unit of a single college team, or even a group of college teams.  The Board also pointed out that the players in this case did not “fit into any analytical framework” the Board had used in other cases involving college students (such as graduate student assistants or student janitors and cafeteria workers) because this case involved student athletes who receive scholarships to participate in what traditionally has been regarded as an extracurricular activity.  The Board also distinguished these scholarship players from professional athletes, because the scholarship players are required to be enrolled full time as students and meet various academic requirements.  The Board further observed that bargaining units in professional sports have never been limited to a single team’s players – they have always included the players of all teams in the entire league.  Therefore, the Board concluded that there was no precedent that required it to assert jurisdiction, and that it was free to exercise its discretion to decline jurisdiction over this case. In justifying its decision to decline jurisdiction, the Board explained that Northwestern is a member of the National Collegiate Athletic Association (“NCAA”), which has a “substantial degree of control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players (as well as walk-on players) practice and play the game.”  Under these circumstances, the Board determined that its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability in labor relations across the NCAA.  The Board further explained that Northwestern competes in the NCAA Football Bowl Subdivision (“FBS”), where 108 of the 125 member schools are public institutions that are not covered by the Act.  As a result, the Board does not have jurisdiction over the vast majority of the FBS teams.  In fact, the Board pointed out that because Northwestern is the only private school in the 14-member Big Ten Conference, it “cannot assert jurisdiction over any of Northwestern’s primary competitors.”  The Board cited this as an additional reason why its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability and uniformity in labor relations. Although the Board’s exercise in restraint in this decision comes as somewhat of a surprise given this Board’s activism in expanding the reach of the Act, the Board made clear that its decision does not “preclude a reconsideration of this issue in the future,” and should be interpreted narrowly.  In fact, the Board seemingly opened the door for consideration of a broader proposed bargaining unit than scholarship football players at one university by stating that its decision is not intended to “address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).”  So, the landscape of collegiate athletics will remain the same for now, but this may not be the last unionizing effort of student athletes that we see.

On April 6, the National Labor Relations Board ("NLRB") General Counsel issued a guidance memorandum to explain the changes in the procedures for processing union representation petitions under the NLRB's final rule on "quickie" elections that was adopted on December 15, 2014.  Although a resolution was passed by Congress to block the NLRB from implementing the quickie election rule, President Obama vetoed the resolution, paving the way for the NLRB's final rule to take effect on April 14, 2015. Although the practical effect of the NLRB's final rule will likely be a shorter time period between the date when a representation petition is filed and the date when the election is held, the General Counsel noted in the guidance memorandum that "neither the final rule, nor this memorandum, establishes new timeframes for conducting elections or issuing decisions."  The guidance memorandum supersedes any provisions contained in the NLRB's manuals and other guidance to the extent that those provisions are inconsistent with the guidance memorandum. For a summary of the NLRB's final rule, see our December 15, 2014 blog post.

Recent activity by the National Labor Relations Board has significantly changed the landscape of union organizing campaigns and representation elections.  Attorneys from Bond, Schoeneck & King's Labor and Employment Department will conduct two free webinars this week to explain these recent developments and their impact on employers.  Each webinar is scheduled for 45 minutes. Ray Pascucci will conduct a webinar on December 17 at 3:00 p.m. to review the Board's final rule on "quickie" union representation elections and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign.  Andy Bobrek will conduct a webinar on December 18 at 11:00 a.m. to review the Board's decision in Purple Communications, Inc., holding that employees have a presumptive right to use their employer's e-mail system during non-working time to communicate about union organizing and discuss their terms and conditions of employment.