The National Labor Relations Board ("NLRB" or the "Board") continues to expand the impact of its controversial 2011 decision in Specialty Healthcare, which paved the way for labor unions to organize employees in so-called "micro units." In DPI Secuprint, Inc., 362 NLRB No. 172 (Aug. 20, 2015), the Board determined that a union can organize a group of workers while excluding some of the targeted group's co-workers who are part of a single, functionally-integrated production process. As a result, employees may be disenfranchised from participating in a collective bargaining process that could potentially result in changes to their terms and conditions of employment or even a labor disruption that could effectively put them out of work.
In DPI Secuprint, a commercial printer challenged an acting regional director's decision approving a bargaining unit that included hourly pre-press, digital press, offset bindery, digital bindery, and shipping and receiving employees, arguing that hourly offset-press employees must also be included in the union's petitioned-for unit.
The employer argued that the offset-press employees share an overwhelming community of interest with the petitioned-for workers and that excluding them would result in a fractured unit. The employer explained that the offset-press employees are an integral part of the employer's functionally-integrated workflow who have extensive work-related contact with the petitioned-for employees, and that the excluded and petitioned-for employees share common supervision, common benefits, common personnel policies, and similar pay rates. The employer also argued that the traditional lithographic-unit presumption favored including the offset-press employees in the unit.
The Board, while acknowledging that the offset-press employees share the above community-of-interest factors with the petitioned-for unit, including common supervision and functional integration, rejected the assertion that the excluded employees share an overwhelming community of interest. In support of this conclusion, the Board noted that the offset-press employees work in a separate department, that their work requires more training, that they work longer shifts and different hours, and that while functionally integrated with the rest of the printing operation, offset-press employees are the only workers who operate the offset printing presses.
This decision stretches the limits of Specialty Healthcare and further increases the difficulty for employers seeking to combat fractured bargaining units. Notably, in this decision, the Board found that Specialty Healthcare means a petitioned-for unit can exclude a functionally-integrated department of employees from the unit and still be found appropriate, even where the excluded employees work in the same space and form part of the same workflow as unit employees. The Board likewise stated that regular contact and interaction among included and excluded employees, even production-related contact, is insufficient to show an overwhelming community of interest in the absence of extensive two-way interchange.
The Board's ruling also appears to eschew the requirement that petitioned-for employees be readily identifiable as a group. The Board claims this requirement only means that the description of the unit must adequately specify the group of employees the petitioner seeks to include.
Member Johnson vehemently disagreed with this notion, pointing out that the proposed unit conforms to nothing except the union's organizing efforts, as the employer has drawn no departmental lines whatsoever around the proposed collection of employees, a unit that is an arbitrary amalgamation of all but one department. Member Johnson wrote: "[The unit] is not an identifiable group. Not even close. It is a list of four departments gathered by the petitioner." (emphasis in original)
The Board also did little to square this result with its 2011 decision in Odwalla, where the Board found that the proposed unit was inappropriate because it did not track any lines drawn by the employer and did not aggregate employees on classification grounds or along departmental lines. While the same appears to be true here, the Board dismissed that notion, claiming there are logical reasons for excluding the offset-press employees. Following this decision, it appears that only in the rarest of circumstances is an employer likely to succeed in arguing that a unit is fractured per the rationale of Odwalla.
Member Johnson's dissent highlights why this case is important to the micro-unit analysis—in noting that Specialty Healthcare destabilizes labor relations and encourages fractured units, he points out that this decision makes clear that Specialty Healthcare "introduced an approach to unit determination that permits easy rationalization of any desired result." The full impact of the DPI Secuprint decision remains to be seen as the Board takes up future cases involving allegedly fractured units; however, employers should expect even greater challenges in their efforts to combat unionization efforts as a result of the NLRB's further expansion of the micro-unit analysis.