NLRB Seeks Comments on Standard for Appropriate Bargaining Units

The National Labor Relations Board (NLRB) recently asked the parties to a case—as well as interested members of the public—for briefs addressing whether the board should reconsider the standard it uses to determine whether a petitioned-for bargaining unit within a workplace is appropriate.

In American Steel Construction, 371 NLRB No. 41 (2021), the NLRB is seeking friend-of-the-court briefs that answer the following questions:

• Should the board keep the unit-determination standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019)? This standard is often referred to as the "community of interest" standard.
• If not, what standard should replace it? Should the board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications? This standard allowed for smaller bargaining units, which are often referred to as "micro-bargaining units."

We've rounded up articles and resources from SHRM Online and other trusted media outlets on the news.

Submitting Briefs

Interested groups may submit briefs of up to 20 pages by Jan. 21, 2022. Additionally, the parties to the case will have until Feb. 7, 2022, to file responses. Briefs must be submitted electronically through the NLRB's website. For assistance, parties may contact the NLRB Office of Executive Secretary at 202-273-1940.

(NLRB)

Boeing Workers' Micro-Bargaining Unit Rejected in 2019

A proposed bargaining unit at a South Carolina Boeing plant—which was limited to only two job classifications within an aircraft production line—wasn't appropriate for a union election, according to a 2019 NLRB ruling in The Boeing Co. case.

The ruling clarified the board's "community-of-interest" standard for determining whether a petitioned-for unit within a workplace is appropriate. The board said it will consider the following three points:

• Whether the members of the petitioned-for unit share a community of interest with each other.
• Whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.
• Whether the proposed unit meets guidelines that the board established for appropriate units in specific industries.
  

The board found that the mechanics in the proposed unit didn't share an "internal community of interest" and didn't have "sufficiently distinct interests" from other employees who were excluded from the petitioned-for unit. The board also noted that there were no appropriate-unit guidelines specific to the industry.

(SHRM Online)

Possible Return to Micro-Bargaining Units

The Boeing ruling revised PCC Structurals, which overruled the prior standard in Specialty Healthcare. In Specialty Healthcare, the board lowered the standard for unions to organize smaller groups into bargaining units.

In PCC Structurals, the board said it would return to scrutinizing petitioned-for bargaining units on a case-by-case basis to determine whether they are appropriate. The prior Specialty Healthcare standard required that employers objecting to petitioned-for bargaining units show that employees excluded from the units share an "overwhelming" community of interest with those workers in the petitioned-for units.

"The ability to form smaller bargaining units by breaking up larger aspects of an employer's organization—sometimes called 'micro-units'—is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize," noted law firm Proskauer. "Longstanding rules of bargaining unit make-up have changed drastically with the change of administrations."

Employers and business groups generally oppose micro units because fractured bargaining units may disrupt operations and force the employer to juggle multiple collective bargaining agreements within the same workplace. 

(Proskauer) and (SHRM Online)

Board Members Divided

The NLRB's Democratic majority said that, under the prior administration, the board changed the standard "without notifying the public that it was reconsidering the applicable standard, inviting amicus briefs or other public input, or allowing the parties an opportunity to brief the case after granting review."

The board has two Republican members who dissented. "In this important area, we disagree with revisiting precedent that already best reflects the board's duty to consider in each case the collective-bargaining rights of included and excluded employees," they said in a joint statement.

(Bloomberg Law)