The National Labor Relations Board (“NLRB”), in a 3-to-1 decision, dealt another setback for Unions and their efforts to improve membership by further eliminating the right of Unions to organize “mini-bargaining units” within a larger facility. This decision further enforces the NLRB’s decision in PCC Structurals, Inc. (2017) in which the Board re-enforced its rejection of the Obama Board’s decision in Specialty Healthcare (2011) which broadened the right of Unions and employees to organize smaller units within a larger facility. In the Court’s new decision, The Boeing Company, the Board clarified the “Community-of-Interest” standard enunciated in PCC Structurals by applying a three-step process for determining whether the proposed bargaining unit is appropriate. The Board determined that:
1. The proposed unit must share an internal Community-of-Interest. That is, the employees share similar functions, share common supervision, and work in common work areas.
2. The interests of those within the proposed unit and the shared and distinct interests of those excluded from the unit must be comparatively analyzed and weighed. In other words, instead of focusing on the smaller proposed unit, the focus now switches to whether the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.” Said another way, taken as a whole, are the differences between the proposed unit and the excluded unit significant enough to warrant approval of the proposed smaller unit?
3. Where applicable, there should also be consideration of guidelines that the Board has already established for specific industries with regard to appropriate Union configurations (such as defense contractors).
Under the Obama Board, Unions which did not enjoy the support of a majority of a larger facility would often seek to organize smaller distinct units within a particular facility. This, in turn, would not only lead to a possible situation where the facility was both unionized and non-unionized but often was used as a means of leveraging Union support in other parts of the facility. However, as the Board has made clear in The Boeing Company decision and its earlier decision in Specialty Healthcare, that strategy has been significantly undercut.
For further information on the impact of these proposed rules, please contact members Mansour Gavin’s Labor and Employment Group.