NLRB: Proposed Micro-Unit of Boeing Mechanics Is Not Going to Fly

Pursuant to Section 9(b) of the National Labor Relations Act, when a union files a petition of its proposed unit of employees, the Board makes a determination as to whether the petitioned-for unit is appropriate or whether it should be expanded to allow other similarly situated employees. In contrast to all-inclusive bargaining units — which requires soliciting unions to gain the lion’s share of support from the entire workforce — unions have steadily utilized a tactic of organizing smaller groups of employees within the larger pool (also known as micro-units), allowing the union to target union-friendly employees, set camp in the workplace for future operations and force employers to negotiate with disjointed groups of employees throughout its workforce.

Prior to 2011, the Board historically determined an appropriate bargaining unit through the traditional “community of interest” test. First, the Board examined whether the employees in the proposed unit shared a community of interest internally. Next, the Board examined whether the community of interest was sufficiently distinct from the interest of employees who were not a part of the proposed unit. The Board relied on a variety of factors, including whether the employees were organized into a separate department, had distinct skills and training, performed distinct job functions, had contact with other employees, integrated with other employees, had distinct terms and conditions, among other factors. The Board used these factors on a case-by-case basis to ultimately determine whether the interests of the group were distinct from the other employees to actually warrant a separate unit.

In 2011, however, the Obama-era Board in Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9 reversed course and loosened the long-standing assessment for bargaining unit appropriateness. The Board ruled that once the union petitioned the NLRB to hold a union election, the Board need only determine that the appropriate unit was readily identifiable as a group which shared a community of interest internally. If the employer wanted to challenge the petition to add more similarly situated employees, it could only do so if the employer demonstrated the bargaining unit was “inappropriate” because the excluded employees shared an “overwhelming” community of interest with the included employees such that there would be no legitimate basis for which to exclude the employees. Thus, Specialty Healthcare fundamentally wiped out the traditional standard of determining whether interests among employees within the petitioned-for unit were sufficiently distinct from those excluded employees—but for the exceptional case of where the employer could first satisfy the “overwhelming” burden. As a result, employers faced substantial difficulty in challenging the scope of a small or micro bargaining unit.

In late 2017, the new Trump-era Board restored the traditional analysis for testing an appropriate bargaining unit in PCC Structurals, Inc. and International Association of Machinists & Aerospace Workers, AFL–CIO, District Lodge W24. In analyzing a petitioned-for unit of 100 welders, which were a part of a group of over 2,500 production workers, the 3-2 Board majority overruled Specialty Healthcare, abolished the “overwhelming” community of interest burden, and returned to an approach of vigorous assessment of the appropriateness of a unit using the traditional two-part community of interest test.

In The Boeing Company, the Board expanded and clarified its holding in PCC Structurals, Inc. and enumerated a three-step test for determining the appropriateness of a proposed bargaining unit:

1. Whether the members of a proposed unit share an internal community of interest with each other, using the traditional factors;
2. Whether excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with the employees in the proposed unit; and
3. If applicable, any consideration guidelines that the Board has established for specific industries with regard to appropriate unit configurations.

In applying the test, the NLRB found that the mechanics in the petitioned-for unit lacked an internal community of interest: members belonged to different departments, did not share supervision and had different job functions. The Board also found the unit failed to have sufficiently distinct interests from the larger workforce, as it had a high degree of functional integration, among other things. Finally, the Board ruled that there were no guidelines specific to industry to apply.

Takeaway for Employers

Previously, the establishment of micro-units often required employers to operate within multiple sets of rules with a fragmented workforce. The Board’s holding in PCC Structurals, Inc. and its application of the rule in The Boeing Company returns the law to the traditional and more even-handed approach of determining appropriate bargaining units. While it remains to be seen how the return to the traditional rule as shown in the Board’s three-part test is applied in cases following The Boeing Company, the decision signals a trend toward recognizing sensible bargaining units that facilitate collective bargaining throughout an entire business’s workforce, a standard that will become more workable and practical for employers.