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Not Again: National Labor Board May Seek to Bring Back Micro-Units

Jan 06, 2022

The National Labor Relations Board (“NLRB”) is inviting public parties and amici to submit briefs to address the controversial issue of petitioned-for bargaining units.

The rise of this hotly contested concept is the result of a recent case, American Steel Construction,  the merits of which have prompted the NLRB to reconsider reverting back to the standard established in a 2011 case, Specialty Healthcare, which made it easier for unions to organize employees into “micro-units.”


A “micro-unit” is a small portion of the total number of employees at a worksite which a labor union seeks to represent. This practice of targeting smaller groups of employees and providing them their own union representation presents a grave danger to employers and trade groups as it has been found to undermine worker’s rights and productivity.


A 2017 case, PCC Structurals, disfavored the use of these units, overturning the standard set in 2011. Now, the Biden board is likely to return to the 2011 standard, which was whether the employees encompassed a petitioned-for bargaining unit were readily identifiable as a group and shared a community interest. 


Now that the NLRB has granted review of the issue, public parties are invited to e-file briefs before January 21, 2022 regarding the following:


  1. Should the Board adhere to the standard in PCC Structurals, Inc., as revised in The Boeing Company?
  2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, either in its entirety or with modifications?


If the NLRB reverts back to the 2011 standard, it would be treading in dangerous waters, returning to harmful precedent in which the Board would accept the petitioned-for unit as appropriate in all cases except those in which the objecting party would somehow manage to survive a nearly impossible burden of proving that excluded employees share an “overwhelming community of interest” with included employees.


The return of micro-units is sure to awaken an uproar last seen over a decade ago and is almost certain to create division and discord in the workplace. 


If you have questions about this topic, or any other general employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

28 Mar, 2024
By: Trevor Brice, Esq. For many Americans, the possible leave that can be taken under state and federal leave has been expanded and extended so that many employees are covered by state and federal leave laws. However, this coverage has not extended to all full-time U.S. employees. A new bill in Congress seeks to change this. On March 20, 2024, several House Democrats announced the introduction of the Protected Time Off (“PTO) Act to guarantee 10 paid days off from work each year for full-time workers. The proposal ensures that all full-time employees will earn no less than two weeks of annual paid leave per year, in addition to any employer-provided or legal required paid sick or family leave, to be used for any reason at the employees’ standard pay rate. Employers must not interfere with or discriminate against workers who seek to take annual paid time off. Possible Implications for Employers under the PTO Act The PTO Act offers two weeks of paid time off to any full-time employee for any reason. This means that employers will have to offer this time off as long as employees provide two weeks’ notice, which is required under the law. Employers with surge seasons will be particularly affected by this act, because, as long as notice is provided, employers cannot deny the time off, unless the surge season qualifies as an emergency under the Act. An employer may place limited, reasonable restrictions regarding the scheduling of paid annual leave and may reject a scheduling request for such leave for a bona fide business reason, so long as the employer provides other reasonable alternative times for the employee to schedule such leave. However, the definition of reasonable alternative times would have to be tested in court, as it is not defined in the pending legislation. Employees would begin to accrue paid leave as soon as their employment begins and employers must provide each employee with no less no less than 1 hour of paid annual leave for every 25 hours worked, for up to 80 total hours. Employees can start using PTO Act leave on the 60 th day of their employment. Employers will need to compensate employees at the same rate that they would have been paid had the employees not used leave. Further, employees are allowed to carry over up to 40 hours of leave year to year and can cash out any unused paid annual leave at the separation of employment. If employers violate the PTO Act, employers may be responsible for lost wages, interest, liquidated (double) damages, and reasonable attorney’s fees and costs. While an individual bringing a claim under the PTO Act may not scare employers, as it could be on the hook for up to four weeks of pay plus attorney’s fees and costs at maximum, a class action on behalf of multiple employees could certainly be something that employers fear. Takeaways The PTO Act, while introduced in the House, is not likely to advance and become law with bipartisan support. However, it is of note that legislators feel comfortable advancing legislation that would give paid leave to all full-time employees. In this sense, it is more likely that a lesser version of the PTO Act could be passed in the coming months and years, which could burden employers with more regulation related to paid leave. As always, if an employer has questions or concerns about the utilization of paid leave and the application of new potential laws like the PTO Act, it is prudent to seek legal counsel. Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
06 Mar, 2024
Royal attorneys successfully obtained a dismissal at the Massachusetts Commission Against Discrimination (MCAD) in a case against our client, a large not-for-profit organization. Royal attorneys argued that the Complainant's complaint failed to establish a prima facie case of whistleblower retaliation and that it should be dismissed in its entirety. The MCAD agreed with our argument, and dismissed the case against our client.
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