Unions, Dems urge lower bar to unionize small groups of workers


(Reuters) - Major labor unions and a group of Democrats in Congress are pushing the National Labor Relations Board to restore Obama-era precedent that made it easier for unions to organize small groups of a company's employees, over the objections of business groups.

More than a dozen briefs were filed with the NLRB on Friday by the lawmakers and unions including the AFL-CIO, as well as the U.S. Chamber of Commerce and other trade groups who called for a business-friendly standard adopted during the Trump administration to remain in place.

The NLRB had called for amicus briefs on the standard last month, in a pending case involving a union's bid to carve out a bargaining unit of ironworkers at a Michigan steel plant that excludes painters, drivers and other employees.

In a 2011 ruling, the board had said that bargaining units are appropriate as long as the workers included in them share key working conditions. But, in 2017 the NLRB reversed that decision and said that workers in a proposed unit must also not share a "community of interest" with those who are excluded.

That ruling shifted the burden to unions to prove that proposed units are appropriate, and made it more difficult to form smaller units. Targeting smaller groups of workers can be a key organizing strategy when unions do not have the support of a company's entire workforce.

The AFL-CIO in its brief on Friday said that under the more recent ruling, many workplaces will only have a single unit that is appropriate under federal labor law. That goes against decades of board and U.S. Supreme Court precedent holding that any appropriate bargaining unit should be approved, the union said.

But the Chamber and other trade groups countered that the Trump-era ruling is more faithful to the National Labor Relations Act, which requires bargaining units to be appropriate "in order to assure to employees the fullest freedom" in exercising their rights to organize. Allowing unions to exclude entire categories of workers violates that mandate, the groups said.

Business groups had harshly criticized the Obama-era decision, saying it would fracture workplaces. But every federal appeals court that reviewed the more union-friendly standard upheld it.

The case is American Steel Construction Inc, National Labor Relations Board, No. 07–RC–269162.

For American Steel: Raymond Carey of Gasiorek Morgan Greco McCauley & Kotzian

For the union: James Faul of Hartnett Reyes-Jones

D.C. Circuit is latest to back NLRB test on 'micro unions'

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at

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