Many in the labor community are familiar with the Machinists Union’s long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility.  After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors.  The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the controversial Specialty Healthcare standard that facilitated the formation of micro-units.  In PCC Structurals, the Board rejected the Specialty Healthcare test and reaffirmed that in reviewing representation petitions, the Board cannot limit its analysis to the interests of employees in the proposed bargaining group and instead must make a “meaningful” evaluation of the interests of those excluded from the group.

Under this standard, the micro-unit proposed by the Union should have been rejected.  Inexplicably, the Regional Director reviewing the petition approved the unit, paying little heed to the guidance announced in PCC Structurals.  Boeing has petitioned the full NLRB to review and overturn the Regional Director’s decision.

Hunton Andrews Kurth filed an amicus brief supporting Boeing’s appeal on behalf of a group including the Coalition for a Democratic Workplace, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center and Retail Industry Leaders Association.  In the brief, the amici urge the Board to accept Boeing’s petition for review in order to provide guidance to the regulated community and the NLRB Regions charged with processing representation petitions on how to properly apply the standard announced in PCC Structurals.  A copy of the brief can be found here.

During a week that brought several notable decisions, the National Labor Relations Board issued a ruling on Friday, December 15, 2017, overturning its controversial 2011 Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”) decision, which held that in order for employees to be included in a collective bargaining unit, employers had to prove the employees shared an “overwhelming community of interest” with one another.  The unions argued that the “overwhelming community of interest” burden was all but impossible to meet and effectively allowed unions to create “micro-units” of any number, group, or sub-group of employees the unions saw fit.  This in turn meant that an employer could be faced with negotiating collective bargaining agreements with multiple groups of employees who often shared the same schedule, workplace, and general terms and conditions of employment, but nonetheless were represented by different locals or divisions of the same or multiple unions.  In one particularly glaring example, the Board approved a union’s request for separate bargaining units in each of nine different graduate student departments at Yale University despite the fact that the union already represented existing, university-wide bargaining units.

Continue Reading NLRB Overturns Prior Precedent, Eliminates “Micro Units” and Discards “Overwhelming Community of Interest” Standard