NLRB foreshadows a return to Gerrymandered union bargaining units – Employment and HR

United States: NLRB foreshadows a return to union bargaining units Gerrymandered

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As we predicted earlier, significant changes are taking place within the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been on the agenda set by General Counsel Jennifer Abruzzo. Now President Biden has had the opportunity to have an impact on the composition of the board itself and therefore the law of the board. President Biden has appointed, and the Senate has confirmed, two new Democratic members to the NLRB: David Prouty and Gwynn Wilcox, both of whom are former union lawyers. This gives Democrats a majority on the board and indicates a high likelihood that President Biden’s pro-work agenda will be approved by the board. It appears that we are now experiencing the first major change that this newly formed Council will address.

On December 7, 2021, the Board invited the public to comment on whether to reconsider its standard for assessing the suitability of a bargaining unit that is the subject of an application in the case American steel construction, 371 NLRB n ° 41 (2021).

The changing NLRB standard for unit scope

In 2011, the NLRB under the Obama administration significantly changed the law regarding the determination of bargaining units. In
Mobile Specialized Health and Rehabilitation Center, 357 NLRB 934 (2011), the Board established a standard according to which a bargaining unit was appropriate if the requested unit was readily identifiable as a group and shared a community of interest. For all intents and purposes, this allowed unions to define the scope of the bargaining unit, unless the employer could demonstrate that an overwhelming community of interest existed between the selected unit and the excluded employees. This permissive standard allowed unions to demand heavily gerrymandered bargaining units that played to their advantage. At the time, many claimed that SHealth specialty violated section 9 (c) (5) of the National Labor Relations Act (“NLRA” or the “Act”), which prohibits the board of directors from giving supervisory weight to the scope organizing a union when determining units.

In 2017 and 2019, under the Trump administration, the Council canceled Specialized health care and reverted to its traditional community of interest test to determine the suitability of a bargaining unit.

American steel construction

Now the new Democratic Council majority has determined it is time to revisit the issue of the appropriate scope of a bargaining unit. In its analysis, the Board addressed the change in standards from 2011 to 2019 and concluded that the union had raised important issues that warranted a review of the region’s determination that the proposed unit in question was unduly narrow in scope. . As such, the NLRB invited the parties and amici to file briefs on two issues:

  1. Should the Council comply with the standard [set forth] in The Boeing Company, 368 NLRB n ° 67 (2019)?
  2. If not, which standard should replace it? If the Council returns to the norm by Specialized health care, 357 NLRB 934 (2011), either in its entirety or with modifications?

It should be noted that the two remaining Republican board members, Marvin Kaplan and John Ring, sharply criticized the majority, observing that it contradicts both the long-established standard that existed before and after the aberration Specialized health care test, but also section 9 of the NLRA itself.

Interested amici can file briefs no later than January 21, 2022.

Key points to remember

Based on the current composition of the Board, it seems likely that the standard for determining the suitability of a bargaining unit request will change. At this point, it is difficult to predict whether the NLRB will revert to the standard established in Specialized health care or develop a new test. However, one thing is clear, whatever standard the NLRB arrives at, it is likely to be more permissive towards narrow bargaining units. As a result, employers should expect a return from the unions asking for smaller, gerrymandered units and the council approving the same.

Developments at NLRB are likely to continue at a rapid pace, we will monitor developments in this area and provide updates as appropriate.

* Myles Moran is a legal assistant in the firm’s New York office.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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