Unions are now able to pick just a small group of employees to join their union. Since it is easier to convince 3 out of 5 employees to join a union instead of 30 out of 50 or 300 out of 500 employees, this change should result in skyrocketing petitions for union elections.
The easiest way to illustrate this is to consider a grocery store. The store has several departments, i.e. produce, cashier, deli, stockers, floral, etc. The law used to favor wall-to-wall bargaining units – all employees at the grocery store were in the same union. Under the NLRB’s latest change of law, each of those departments can join separate unions.
Previously, if the floral department wanted a union, it needed to convince employees in the other departments to vote for union representation. Now just the few employees in the floral department can join a union on their own.
Think of your own workplace as you read the rest of this. The many different departments and job classifications identified in your handbook. Employees who work in distinct environments or locations within the same facility. Employees who work on the same machines or use the same tools or equipment. Each of these are ripe for joining their own micro bargaining units.
Unions file petitions for elections for the smallest group possible (just the few floral employees). This gives the union the biggest chance of winning. Unions then hope to expand their representation into other areas of the workforce.
Employers often want to expand the group of voters to include others who should logically also be included with the union’s petitioned-for group. Expanding the group oftentimes aligns with the structure of the operation. It could also substantially change the number of votes a union needs to win the election.
In American Steel, 372 NLRB No. 23 (Dec. 2022), the National Labor Relations Board held that employers seeking to enlarge the scope of a petitioned-for bargaining unit must demonstrate that excluded employees share an “overwhelming” community of interest with the group the union seeks to represent. This places a significant burden on employers that seek to demonstrate that additional employees must be included to make the unit appropriate for bargaining. I anticipate the proliferation of “micro units” because of this change.
Under American Steel, the Board will approve a petitioned-for subset of a classification of employees if the petitioned-for unit:
- shares a community of interest;
- is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and
- is sufficiently distinct.
Employers that contest the “sufficiently distinct” element and argue that the smallest appropriate unit should include additional employees will need to show that there is an “overwhelming community of interest” between the petitioned-for unit and the excluded employees. This is a heightened showing that requires the interests of the petitioned-for and excluded employees to overlap almost completely to mandate inclusion in the proposed bargaining unit.
Employers will have added time, expense, and the disruption of responding to organizing campaigns in discrete micro-units of pro-union employees. Employers may have to negotiate multiple union contracts for different groups of employees in the same facility. While multiple collective bargaining agreements covering hundreds of union members is common for employers with thousands of employees; it is virtually unheard of for small employers like grocery stores.
Employers should asses their risk of a successful union campaign and consider operational and structural changes that could minimize susceptibility to micro-unit organizing. This should focus on enhancing the likelihood of meeting the “overwhelming community of interest” test. These changes may include:
- Flattening the hierarchy of the department or operation
- Expanding the supervisory span of control to a larger number of departments or job classifications;
- Combining departments or job classifications;
- Cross-training employees in multiple classifications and jobs;
- Rotating employees among classifications or jobs; and
- Increasing the degree of interchange among departments and classifications.
Not all of these suggestions are feasible for every company. Creative, pro-active planning and implementing changes focused on meeting the “overwhelming community of interest” test is the best (and perhaps only) way to defend against several small unions at your company.
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Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.
Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at Matt@MattAustinLaborLaw.com.