The ability to form smaller bargaining units by breaking up larger aspects of an employer’s organization—sometimes called “micro-units”—is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize.  Those opposed to the practice, including both employers and trade groups, contend that carving out a small portion of an employer’s workforce into a bargaining unit fractures the workplace and thereby undermines both productivity and workers’ rights.

Whether a “micro-unit” is permissible under the National Labor Relations Act (“NLRA”)—like so much else in labor law during the last several years—depends on timing.  Longstanding rules of bargaining unit make-up have changed drastically with the change of administrations.

In 2011, the Board lowered the bar for unions to organize smaller groups into bargaining units, notwithstanding decades of precedent to the contrary.  In 2017, the Board restored the pre-2011 standard for evaluating the appropriateness of a petitioned-for bargaining unit.  We have discussed these cases in detail here, here and here.  On December 7, 2021, in American Steel Construction, 371 NLRB No. 41 (2021), the Board invited public input as to whether it should reconsider that standard once more and possibly revert back to the 2011 rule making it easier for unions to organize employees into micro-units.  The Board’s recent request to the labor-relations community for amici briefing foreshadows that it likely will adopt the 2011 model that permitted “micro-units.”

Procedural History

Local 25, International Association of Bridge Structural, Ornamental, and Reinforcing Iron Workers, AFL-CIO, filed a petition on November 18, 2020, seeking to represent a bargaining unit composed of the full- and regular part-time journeymen and apprentice field ironworkers employed by American Steel Construction, Inc.  Citing PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Company, 368 NLRB No. 67 (2019), the Region held that the community of interest shared among employees encompassed by the proposed unit was not sufficiently distinct from the interests of other employees excluded from the petitioned-for unit.

Accordingly, the Region agreed with the Employer that the petitioned-for unit was inappropriately narrow in scope, adding that the appropriate unit would include American Steel’s fabrication shop employees, painters, and drivers.  Noting that the Union declined to represent that broader unit, the Region dismissed the petition.

The Board Majority’s Analysis and Request for Briefing

The Board noted that, prior to the decision in PCC Structurals, the Board’s Specialty Healthcare & Rehabilitation Center of Mobile opinion set out a more permissive standard for determining the appropriateness of a petitioned-for bargaining unit.  357 NLRB 934, 945-946 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).  The standard under Specialty Healthcare was whether the employees encompassed by a petitioned-for bargaining unit were readily identifiable as a group and shared a community of interest.  Under that standard, whether the community of interest among included employees was meaningfully distinct from the interests of excluded employees who arguably might also belong in that group was irrelevant unless the employees of the broader potential unit shared an “overwhelming community of interest” with those in the petitioned-for unit.

The Board, in PCC Structurals, discarded that standard, explaining that when comparing the “shared and distinct interests of petitioned-for and excluded employees,” the key question is whether the excluded employees have “‘meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.’”  365 NLRB No. 160, slip op. at 9, 11 (quoting Constellation Brands U.S. Operations, Inc. v. NLRB, 842 F.3d 784, 794 (2d Cir. 2016)).  Later, in Boeing, the Board noted that if the distinctions among excluded and included employees’ interests do not outweigh their similarities, the unit is not appropriate in scope.  368 NLRB No. 67, slip op. at 4.

In the instant decision, the Board found that the Union raised substantial issues warranting review of the Region’s determination that the petitioned-for unit was inappropriately narrow in scope.  Accordingly, the Board granted review of the issue and invited both parties and amici to e-file briefs on or before January 21, 2022, regarding the following two questions:

  1. Should the Board adhere to the standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised 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?

The Dissenting View

Board Members Marvin Kaplan and John Ring criticized the majority opinion, observing that it ran contrary not just to existing precedent under PCC Structurals and Boeing, but also to the long-established precedent properly interpreting Section 9 that prevailed before the brief tenure of the aberrational Specialty Healthcare opinion.

The dissenting members criticized the Specialty Healthcare standard because it would mean that the Board would accept the petitioned-for unit as appropriate in “all but the rarest cases,” as it would require that the Board find appropriate any petitioned-for bargaining unit with an internal community of interest, except where the objecting party can meet the extraordinarily heavy burden of proving that excluded employees share an “overwhelming community of interest” with included employees.


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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.