The National Labor Relations Board (NLRB) has announced that it is considering taking a more union-friendly approach to determining the appropriate voting unit when a union calls for an election. American Steel Construction Inc. and Iron Workers Local 25, 370 NLRB # 41 (December 7, 2021).
The eventual NLRB rule could have a significant impact on union organizing in the construction industry.
The importance of the potential rule change is well illustrated by the history of the American steel construction Case. The company was active in the metal framework sector. It employed fabricators, welders and painters in its fabrication shop, truck drivers who delivered the manufactured product to job sites, and field workers who performed installations at construction sites. Local 25 sought to represent only field workers and filed a petition asking Council to hold an election among this group. The company objected, arguing that the high level of integration of company operations requires a “wall-to-wall” or company-wide unit.
Under current standards, outside employees would only be excluded from the unit if they had “genuinely distinct interests in the collective bargaining context which outweigh any similarities” with the proposed outside employee unit. by the union. The NLRB Regional Manager concluded that due to the integration of operations, the distinctions did not outweigh the similarities and therefore, company-wide unity was appropriate. The practical effect of the decision was that the election did not take place because Local 25 was unwilling to represent the whole unit.
The union has appealed the regional director’s decision. In that call, the NLRB invited the public to submit briefs on whether the Council should revert to the Obama-era rule of unit determination, known as the Specialized health care Standard.
Under this standard, if the employees the union proposes to represent are “readily identifiable as a group” then that group will be deemed appropriate, even if there is a larger group with common interests. Under this rule, the result of the American steel construction The case would almost certainly be in favor of the unit proposed by Local 25, as field workers are an “easily identifiable” group. Their close integration with other employees would not be a factor.
A return to Specialized health care seems to be in sight, given the NLRB announcement. By allowing an organizing union to target small groups of the workforce, the union’s chances of ultimate victory increase. Such a scenario also raises the specter of operational difficulties that arise from a divided workforce with some unionized and non-unionized segments.
Jackson Lewis PC © 2021Revue nationale de droit, volume XI, number 364