Developments at the Boeing plant in Charleston, South Carolina, prove that the specter of micro bargaining units was not put to rest by the NLRB’s return to the traditional community of interest analysis this past December. Late last week, a group of 178 employees out of a workforce of approximately 7,000 at Boeing’s plant voted to unionize. (Last year, a substantially larger group of employees voted overwhelmingly against union representation.) The recent vote, along with the approval of the micro unit, continues the trend from 2011 to 2017 when the NLRB followed the “overwhelming community of interest” test, which was conducive to micro units representing only a portion of employees at any particular workplace.
For decades, the NLRB followed the traditional community of interest test for determining the makeup of bargaining units. In 2011, the Specialty Healthcare decision instituted an “overwhelming community of interest” test for determining an appropriate bargaining unit, which encouraged a trend of micro units. The employer’s burden proved difficult to meet, and for years the Specialty Healthcare decision permitted micro units within larger groups of employees to vote on union representation without seeking input from other employees. The NLRB’s approval of micro units permitted multiple different units (and potentially unions) at one facility and enabled unions to establish a presence through a small group of employees at a facility that may not otherwise have voted to unionize under the traditional community of interest test.
As we previously wrote, in December 2017 the NLRB overturned Specialty Healthcare and returned to the traditional community of interest test with its decision in PCC Structurals. Under the traditional test, the party opposing the bargaining unit does not need to make any “overwhelming community of interest” showing. Rather, to approve a proposed group of employees as an appropriate bargaining unit, the NLRB must make the determination that excluded employees are sufficiently distinct from those employees in the proposed group without any extra burden being placed on the opposing party.
The traditional test requires the NLRB to assess multiple factors, including whether employees:
- Are organized into a separate department;
- Have distinct skills and training;
- Have distinct job functions and perform distinct work;
- Are functionally integrated with the other employees;
- Have frequent contact with other employees;
- Interchange with other employees;
- Have distinct terms and conditions of employment; and
- Are separately supervised.
However, in PCC Structurals, the NLRB pointed out that its return to the traditional test does not require “wall-to-wall” bargaining units and does not overturn existing precedent as to the community of interest analysis determining “an” appropriate bargaining unit rather than “the” most appropriate bargaining unit.
The recent developments at Boeing’s Charleston plant show that the trend of micro units could well continue despite the decision in PCC Structural. On May 21, the NLRB’s Regional Director approved a unit of 178 flight-line workers within a total plant workforce of 7,000. The International Association of Machinists and Aerospace Workers, AFL-CIO, (“IAM”) argued the flight-line workers were an appropriate unit based primarily on their specialized skills and training, among other factors. Boeing argued the only appropriate unit included all full-time and regular part-time production and maintenance employees, totaling approximately 2,700 employees at the plant. The Regional Director acknowledged PCC Structurals as controlling precedent, but found the factors under the traditional community of interest test favored the IAM’s argument and approved what amounts to a micro bargaining unit.
On May 31, the employees in the micro unit voted to unionize. This vote follows a vote last year by a much larger unit at the same Boeing facility to reject unionization. Moving forward, Boeing has challenged the Regional Director’s decision as contrary to PCC Structurals and believes the full NLRB should review the Regional Director’s decision to allow the election in the smaller unit. In the meantime, this development shows that, notwithstanding the NLRB’s change to the law, employers are not out of the woods when it comes to unions targeting subsets of their working forces.