- In its decision, The Boeing Company, the National Labor Relations Board clarifies what constitutes an "appropriate" bargaining unit under the "community of interest" standard, using a three-part test.
- The Board reaffirms its prior holding disapproving of "micro-units," making it harder for unions to selectively target smaller groups of employees for unionization.
- The Board continues to overturn union-friendly precedent and issue employer-friendly decisions that allow employers more business flexibility and operational efficiency.
The National Labor Relations Board (NLRB) has held that a unit selected for organizing by the International Association of Machinists and Aerospace Workers (IAM) – one including approximately 180 jet mechanics at Boeing's aircraft production plant in South Carolina – was not an appropriate one. At that one plant, Boeing employs 2,700 production-and-maintenance employees stationed throughout the production line, all of whom work on producing only the 787 Dreamliner aircraft. The Board, in its Sept. 9, 2019, decision, The Boeing Company (10-RC-215878; 368 NLRB No. 67), reversed the Regional Director's decision, which found the IAM's petitioned-for unit, which included employees across only two job classifications, an appropriate one under the Board's previous decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017).
In PCC, the Board explained that a subset of employees of a larger group within the same department or workplace can form their own appropriate unit only where that smaller and defined group 1) has a "community of interest" among those within it, and 2) where that community of interest is "sufficiently distinct" from those of employees outside of the group. PCC, itself, overturned a union-friendly decision of the Board, Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which allowed the organization of "micro-units" of employees, effectively limiting employers from challenging petitioned-for units strategically selected by unions.
In Boeing, the Board majority stated that the Regional Director's decision, which preceded by 10 days the union winning the representation election on May 31, 2018, misconstrued the requirements set forth in PCC, which disapproved of the "micro-unit," allowed in Specialty Healthcare, and set forth a three-step process clarifying the requirements of the community of interest standard of PCC. Although a union can, as a first move, choose those employees within a select group in petitioning a regional office of the Board for an election of an "appropriate" unit, ultimately an employer, as Boeing successfully did here, can fight the designation of the petitioned-for smaller unit if the selection fails to meet the test of PCC, reaffirmed by the Board in Boeing.
In determining whether the petitioned-for unit (or proposed unit, if challenged by the employer) is an "appropriate" unit, the Board will consider whether 1) the employees of the petitioned-for/proposed unit share a community of interest with each other, 2) the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with those of the petitioned-for/proposed unit, and 3) the petitioned-for/proposed unit meets the guidelines, if any, the Board has established for units in specific industries. Pointedly, in Boeing, the majority found that the petitioned-for unit failed steps 1 and 2 of the test, and the Board also recognized that there were no specific industry guidelines governing unit appropriateness.
Conclusion and Takeaways
The Board's decision in Boeing, just as with its employer-friendly decision in Kroger Limited Partnership I Mid-Atlantic earlier this month (see Holland & Knight's alert, "NLRB Restores Employer Property Rights," Sept. 10, 2019), represents a clear and intentional ideological shift, granting employers more rights and options in opposing and challenging unionization. It appears similar employer-friendly decisions could be on the horizon, including those impacting an employer's ability to lawfully discipline insubordinate employees who use offensive and obscene language in the workplace against management.