NLRB Overturns "Micro-Unit" Determinations

Written on March 27, 2020.

In order for a union to petition the NLRB to conduct a union election, the union must establish that the election will be held in an appropriate voting unit. During the Obama-era, in a case called Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest, and the employer took the position that the smallest appropriate unit had to include additional employees, the Board would find the petitioned-for unit appropriate unless the employer proved that the excluded employees shared an "overwhelming" community of interest with the petitioned-for group. The Board has now abandoned the "overwhelming" community-of-interest standard and returned to the traditional community-of-interest test that the Board has applied through most of its history. PCC Structurals, Inc. 365 NLRB No. 160 (2017).

The Specialty Healthcare issue became known as the "micro-unit" issue, as the concept allowed unions to carve out voting units that were most favorable to union representation. Some cases even allowed individual departments in department stores to vote on union representation. In the PCC case itself, the union was attempting to organize 100 employees out of 2,500 workers in a plant where the welders worked alongside other workers. More employers in the future will undoubtedly organize their facilities in a manner to lessen the opportunity for a union to "carve out" a pro-union voting unit.

The new decision is already having an effect, as evidenced by the situation at Volkswagen in Chattanooga, Tennessee. At Volkswagen, the United Auto Workers has been trying to organize the plant for many years, losing a major election even though the company pledged "neutrality" and did not campaign against the union. Thereafter, the NLRB held that the Specialty Healthcare decision supported the union’s request for a vote among maintenance employees only. Four days after the PCC Structurals’ ruling, the NLRB filed a motion to reconsider the earlier ruling.