The Trump-era National Labor Relations Board (NLRB) is dialing back a decision that was made by the board during the Obama Administration to allow unions to organize small portions of much larger workforces.
In 2011, the board first allowed unions to organize what are called micro-units, and since then organizers have exploited the new opportunity to get their foot in the door of workplaces where they otherwise lacked sufficient support to organize the entire workforce, such as in department stores and at an automobile manufacturing plant.
According to the original decision, the primary determining factor was whether the entire workforce shared what was called “a community of interests” that would preclude separating out some employees from the larger group. Under the Obama-era NLRB standard, no such community of interests existed when perfume saleswomen were separated out from other department store employees, and when maintenance and custodial employees were successfully organized at an auto plant (although that union later withdrew from representing them).
One of these union successes occurred when technicians at the Boeing Co. plant in Charleston, S.C., voted last year in favor of having the International Association of Machinists (IAM) become their collective bargaining representative.
That happened after workers among the plant’s total workforce of about 6,800 either declined to vote or chose to vote overwhelmingly against the union in 2017. (IAM had withdrawn an earlier petition for a vote in 2015, making this the third attempt to organize that plant).
IAM then proposed a bargaining unit which consisted only of 178 flight-line readiness technicians and flight-line readiness technician inspectors. The Boeing micro union had been approved by an NLRB regional director, and the company then appealed that decision to the board, which handed down its decision on Sept. 9.
Although the new board had tightened up the community-of-interest standard in another decision in 2017, the Boeing case is seen as more important because of its impact on future cases. Embodied in the new Boeing decision are a set of three criteria the NLRB said it will use to determine whether a unit is appropriate.
Step One: The employees in the petitioned-for unit must share a community of interest with each other. The board found that the Boeing technicians did not share interests with the inspectors sufficient to establish a community of interest within the petitioned-for unit. The technicians and inspectors were in separate departments, did not share any supervision, had different job functions and a lack of interchange between the classifications.
“Taken together, the board found the interests shared between the two classifications were too disparate to form a community of interest, and the petitioned-for unit was therefore inappropriate,” point out Michael Lebowich and Laura Franks, attorneys with the law firm of Proskauer Rose.
Employers: Take Heed
Step Two: A comparative analysis must determine whether the interests of employees excluded from the petitioned-for unit are sufficiently and meaningfully distinct and outweigh any similarities with those included in the petitioned-for unit. If such distinct interests do not outweigh similarities, the unit is inappropriate, ending the inquiry.
The board found that the excluded employees did not possess interests which were sufficiently and meaningfully distinct from, and did not outweigh similarities with, the interests of the petitioned-for unit of the technicians and inspectors.
Specifically, it was found that there was a high degree of functional integration among the excluded and included employees, and that the included classifications were in the same departments as excluded employees and shared supervision, most terms and conditions of employment, and most of the same skills and training.
The board also said it found that any distinguishing factors between the included classifications and excluded employees were “relatively insignificant” for collective bargaining purposes.
Step Three: The analysis must consider what guidelines, if any, the NLRB previously established for specific industries in regard to appropriate unit configurations. The board also concluded that there were no appropriate unit guidelines specific to Boeing’s operations.
The NLRB recognized that well-established board precedent supported a presumption that integrated manufacturing facilities, like Boeing’s Charleston facility, should be wall-to-wall, note attorneys Michael D. Carrouth and Stephen C. Mitchell of the law firm of Fisher Phillips.
The NLRB’s recent decision in Boeing should help to stabilize a significant area of U.S. labor law by reestablishing the application of a legally sound analysis and makes the manipulations of NLRB procedures less likely, the attorneys observe. However, the events leading to the decision confirm, “organized labor’s efforts to circumvent even the most sound legal analysis are likely to continue,” they stress,
Carrouth and Mitchell warn employers, “While business and operational demands will always be the paramount considerations in establishing job classifications and departmental structures, employers utilizing an integrated operation should give some consideration to its employment structure to further reduce the risk of facing a micro unit. This is especially the case for employers who believe they will be the target of organizing efforts.”