In a somewhat ominous sign of things to come, the National Labor Relations Board (NLRB or the Board) has invited briefing on whether to change the test for determining whether a union has proposed an appropriate employee voting group (i.e., a “voting unit”) in petitioning for an NLRB representation election.
The current standard that applies in such cases was adopted during the Trump administration. To be clear, the chances of the NLRB’s newly constituted Democratic majority retaining the Trump-era test fall somewhere between the probability of the sun rising in the west and the likelihood of the Cleveland Browns winning the Super Bowl this season (or ever) — which is to say, zero.
The only question is whether the Board will readopt the Obama-era standard or create something even more labor-friendly. Because unions typically propose voting units based on the areas in which they enjoy the strongest employee support, deference to a union’s proposed voting unit greatly increases the union’s potential for victory.
For a brief history lesson, the NLRB under the Obama administration adopted a test that granted near-complete deference to a union in describing a proposed voting unit. Under the Obama-era test, the first step in the Board’s analysis was whether the union’s proposed voting unit was “readily identifiable” as a group and whether the employees in that group shared a “community of interest.” The “community of interest” analysis included such factors as whether the employees were in separate departments, whether they shared similar skills and training, whether they had distinct job functions, and whether they had common supervision. The initial step in the Trump-era analysis, as a practical matter, focused on most of the same considerations.
The tests diverged, however, at the second step of the analysis, applicable in cases where the employer argues that additional employees should be included in the voting unit and be eligible to vote in the ensuing representation election. In general, the current Trump-era test requires such employees to be included if their common interests with the petitioned-for voting unit outweigh their distinct interests. Under the Obama-era standard, in contrast, the employer was required to show that the excluded employees shared an “overwhelming community of interest” with the employees included in the union’s petition. In practical terms, this burden was virtually impossible to meet and typically resulted in the rubber-stamping of voting units that unions proposed in petitioning for elections.
Given the Board’s current prolabor leanings, it is not at all surprising that the Board intends to reconsider this subject. But will the Board be content to readopt the labor-friendly Obama-era standard? Or will it announce an entirely new test that provides even greater deference to unions in designing fail-safe voting units? One would think that the Obama-era test reaches (and arguably exceeds) the boundaries of the Board’s discretion, but anything is possible. After all, the Browns made the playoffs last year.
TAKEAWAYS: The NLRB is poised to alter the union election process to stack the odds further in organized labor’s favor.