NLRB considering overhaul of test for approving smaller unions

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly
  • Trump-era board raised the bar for carving out small groups of workers
  • New Democratic majority seeking input on revival of Obama-era test

(Reuters) - The National Labor Relations Board on Tuesday called for input on whether it should revive an Obama-era standard making it easier for unions to organize small groups of employees within a workplace, which had been sharply criticized by trade groups.

The Democrat-led board invited amicus briefs on the question in a pending case involving a union's bid to carve out a bargaining unit of ironworkers at a Michigan steel plant that excludes painters, drivers and other employees.

Forming smaller bargaining units can be a key organizing strategy for unions, particularly when they lack support from a majority of an employer’s workforce. But business groups say that smaller bargaining units fracture workplaces, and limiting workers' ability to form them was a top priority for many trade groups during the Trump administration.

In a 2017 decision, the Trump-era NLRB had raised the bar for certifying bargaining units that include only workers with certain job titles and had overruled an Obama-era standard that placed the burden on employers to show that groups of workers were improperly excluded from bargaining units.

On Tuesday, the five-member board's Democratic majority asked for briefs on whether the agency should reinstate the Obama-era standard or otherwise overrule the 2017 decision.

Republican board members Marvin Kaplan and John Ring dissented, saying the standard they approved in the 2017 case would better protect the rights of both included and excluded workers. The existing standard leaves room for truly distinct groups of employees to form their own units, they said.

The case is American Steel Construction Inc, National Labor Relations Board, No. 07–RC–269162.

For American Steel: Raymond Carey of Gasiorek, Morgan, Greco, McCauley & Kotzian

For the union: James Faul of Hartnett Reyes-Jones

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at