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. Continue Reading