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Bargaining Unit Can Still Be ‘Micro’ under ‘Community of Interest’ Standard

After the NLRB adopted a new standard for determining bargaining-unit composition, many expected fewer micro-units would result. PCC Structurals, 365 NLRB No. 160 (2017) (PCC I). However, when the employer filed a request for review (appeal) of the Regional Director’s decision allowing, on remand, a “micro-unit” of its employees to vote on union representation under the new standard, the NLRB denied it. PCC Structurals, Inc., No. 19-RC-202188 (Nov. 28, 2018) (PCC II).

In PCC I, the Board had overruled its Specialty Healthcare (357 NLRB 934 [2011]) decision, reviving its prior, more employer-friendly standard for evaluating an employer’s claim that a petitioned-for bargaining unit should be expanded to include additional employees requested by the employer. In PCC I, the Board ruled that a party seeking to add employees to a “micro-unit” need only show the excluded employees share a “community of interest” with the petitioned-for employees, rather than the “overwhelming community of interest” required under Specialty Healthcare.

In PCC I, the Board remanded the case to the Regional Director for evaluation of the union’s proposed bargaining unit and the employer’s counterproposal under the new standard. The Regional Director determined that, even under the new standard (and the Board’s craft-unit case law), the union’s petitioned-for micro-unit (a group of the employer’s rework employees and welders – approximately 120 employees) was appropriate. (The company had taken the position that the unit should include all production and maintenance employees, which would mean 120 job classifications and 2,565 employees.) The Regional Director explained that “the petitioned-for Unit constitutes a craft unit of highly skilled welders and is appropriate for the purposes of collective bargaining in that the petitioned-for welders share a community of interest sufficiently distinct from excluded employees.” The analysis considered departmental organization, skills and training, job duties, functional integration, contact, interchange, terms and conditions of employment, and supervision. The Board concluded that these factors weigh in favor of finding the petitioned-for employees share “a community of interest sufficiently distinct from excluded employees.”

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Associate

Fatima M. Guillen-Walsh is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Ms. Guillen-Walsh served as the Editor-in-Chief of the Hofstra Labor & Employment Law Journal and Vice President of the Public Justice Foundation. She was also a member of Hofstra Law’s Dispute Resolution Society, serving on the external competition team and assisting as a coach for the team. Ms. Guillen-...

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
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Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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