Change is coming. We noted recently that the administration is thinking about changing the newly adopted persuader regulations. We also know that a majority of make-up of the NLRB is likely to shift very soon, and with it some of the precedents of the last few years will be reversed. Newly appointed Chairman Miscimarra seems to be reiterating what he’d like to see changed through his dissents in recent cases.
In Cristal USA, Inc., 365 NLRB No. 74 (May 10, 2017), a Board majority denied an employer’s request for review of a Regional Director’s decision about a bargaining unit. In the decision the Regional Director approved a unit of warehouse only (the unit sought for by the union) and rejected the employer’s contention that the unit should include the production employees in the plant as well as the production employees working in the employer’s plant across the street. In finding this smaller, discrete unit appropriate, the Regional Director applied Specialty Healthcare and Rehab. Ctr of Mobile, 357 NLRB No. 83 (August 26, 2011). Specialty arguably is the most significant decision issued in the last few years as it upended years of Board law in favor of a standard that almost guaranteed that the bargaining unit sought by the union in its petition would be found to be an appropriate unit. If the group of employees sought by the union is identifiable then the only way the employer can prove that a larger unit was appropriate is to establish the employees it seeks to add shared an “overwhelming community of interest” with the petitioned-for employees. It is not surprising that since Specialty issued, very few cases have resulted in a larger bargaining unit. Indeed, the standard has resulted in some odd decisions.
In Cristal, Chairman Miscimarra signaled his intention to re-visit, and perhaps reverse, Specialty, noting that he thought that decision was “wrongly decided.” Miscimarra noted that there was evidence of that the employees working in close proximity at the employer’s two plants shared a very common interest in that they all were part of an integrated employer operation.