Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
On December 14, the National Labor Relations Board (NLRB) took a step backward in labor relations. In a case called American Steel Construction, the NLRB in a 3-2 decision replaced a reasonable standard for determining the composition of bargaining units with the flawed process first created under an Obama-era ruling called Specialty Healthcare.
When a union seeks to organize a workplace, it must suggest which workers will be in the bargaining unit. Traditionally, this meant a unit that would be “appropriate for the purposes of collective bargaining.” In other words, all employees for whom the union’s bargaining would be relevant. In many cases this wound up being a “wall-to-wall” unit with all employees at a facility included.
A challenge for unions, however, is that organizing larger groups of workers can be difficult. The smaller the unit, the higher the chances of success. Thus, in 2011, the Obama NLRB issued the Specialty Healthcare decision, which put in place a new standard. Unions could now effectively select the individual employees they wished to organize, pretend that this represented a unit appropriate for the purposes of bargaining, and present it to the NLRB. If the employer sought to object, it would have to show that any employees it wished to add shared “an overwhelming community of interest” with the unit requested by the union — an almost impossible standard to meet.
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