The National Labor Relations Board today ruled in the case of American Steel Construction, Inc., in which the Board changed the test it uses to determine if additional employees must be included in a claimant unit in order for it to be the proper negotiating unit. . This decision brings the Board back to its previous trials of decisions such as Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) canceling PCC Structurals, 365 NLRB #160 (2017) and Boeing. , 368 ZSB No. 67 (2019).
In its decision, the board reaffirmed its longstanding principle that employees of candidate organizations must be “easily identifiable as a group” and have a “community of interest”. However, if a party believes that a proposed unit that meets these criteria should include additional staff, the board reiterates that it is the party’s responsibility to demonstrate that the excluded staff members share an “overwhelming community of interest” in order to force their inclusion into a conversation unit. .
“The committee’s job in evaluating the adequacy of a call center is to ensure that employees enjoy – in the language of the National Industrial Relations Act – “total freedom of association,” said chairwoman Lauren McFerran. “The restoration of professional health care standards is consistent with this principle, ensuring that workers have the opportunity to organize themselves into units of their choice, as long as it is not arbitrary or irrational.”
The decision followed a notice to the Board and an invitation to briefings asking the parties and the amicus curiae to provide a summary of whether the Board should review its criteria for determining whether the proposed negotiating unit is appropriate.
Members Wilcox and Prouty, along with Chairman McFerran, published the decision. Members Kaplan and Ring disagree.
The National Labor Relations Board was established in 1935 as an independent federal agency to protect workers from unfair labor practices and to protect private sector workers from organizing for higher wages, benefits, and jobs, with or without union rights. The NLRB holds hundreds of workplace elections each year and investigates thousands of allegations of unfair labor practices.