As we previously predicted, significant changes are taking place at the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been in the agenda set by General Counsel Jennifer Abruzzo. Now, President Biden has had the opportunity to impact the composition of the Board itself and thus Board law. President Biden has appointed, and the Senate confirmed, two new democratic members to the NLRB: David Prouty and Gwynn Wilcox, who are both former union lawyers. This gives the Democrats a majority on the Board and indicates a strong likelihood that President Biden’s pro-labor agenda will be approved by the Board. It appears that we now know the first significant change this newly constituted Board will tackle.

On December 7, 2021, the Board invited public input on whether to reconsider its standard for evaluating the appropriateness of a petitioned-for bargaining unit in the case American Steel Construction, 371 NLRB No. 41 (2021).

The NLRB’s Shifting Standard for Unit Scope

In 2011, the NLRB under the Obama administration significantly changed the law as it relates to bargaining unit determinations. In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the Board established a standard that a bargaining unit was appropriate if the petitioned for unit was readily identifiable as a group and shared a community of interest. For all practical purposes this allowed unions to set the scope of the bargaining unit unless the employer could show that an overwhelming community of interest existed between the selected unit and the excluded employees. This permissive standard allowed unions to petition for heavily gerrymandered bargaining units that played to their advantage. At the time many argued that Specialty Healthcare ran contrary to Section 9(c)(5) of the National Labor Relations Act (“NLRA” or the “Act”), which prohibits the Board from giving controlling weight to the extent of a union’s organizing when making unit determinations.

In 2017 and 2019, under the Trump administration, the Board reversed Specialty Healthcare and returned to its traditional community of interest test for determining the appropriateness of a bargaining unit.

American Steel Construction

Now, the new Democratic Board majority has determined that it is time again to take up the issue of the proper scope of a bargaining unit. In its analysis, the Board addressed the shift in standards from 2011 to 2019 and held that the Union raised substantial issues that warranted review of the Region’s determination that the proposed unit in question was inappropriately narrow in scope. As such, the NLRB has invited the parties and amici to file briefs regarding two questions:

1. Should the Board adhere to the standard [set forth] in The Boeing Company, 368 NLRB No. 67 (2019)?

2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?

It should be noted that both 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 aberrational Specialty Healthcare test, but also Section 9 of the NLRA itself.

Interested amici may file briefs on or before January 21, 2022.

Key Takeaways

Based on the current composition of the Board, it seems likely that the standard for determining the appropriateness of a petitioned for bargaining unit will change. At this point, it is difficult to predict whether the NLRB will return to the standard established in Specialty Healthcare 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 to see a return to unions petitioning for smaller, gerrymandered units and the Board approving the same.

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