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NLRB Issues New Decision Adopting 3 Part Test for Analyzing Bargaining Unit Scope Disputes

On Monday, Sept. 9, 2019, the National Labor Relations Board (NLRB) issued its decision in The Boeing Company and International Association of Machinists and Aerospace Workers, adopting a three part test for determining whether a bargaining unit is appropriate under the analysis set forth in PCC Structurals, Inc., 365 NLRB 160 (2017). Applying the three part test, the NLRB reversed a regional director’s decision approving a petitioned-for unit because the unit did not share a community of interests and the unit’s interests were not distinct from excluded employees.

Background

On May 21, 2018, the NLRB regional director issued a Decision and Direction of Election finding that a petitioned-for unit at The Boeing Company’s (Employer) South Carolina production facility was appropriate under PCC Structurals, Inc. The petitioned-for unit consisted of two classifications of employees within the Employer’s production line of the 787 aircraft: flight-line readiness technicians (FRTs) and flight-line readiness technician inspectors (FRTIs). These classifications include approximately 178 of the 2,700 production and maintenance employees at the facility and are responsible for performing and inspecting various work on the Flight Line. On May 31, 2018, the election took place, and the petitioner prevailed. On June 12, 2018, the regional director issued a Certification of Representative, which the Employer opposed. 

The NRLB Decision

On review, the NLRB determined the petitioned-for unit was inappropriate under the PCC Structurals, Inc. decision and reversed the decision of the regional director. The NLRB began by setting forth a three-step analysis for determining whether a petitioned-for unit is appropriate under the PCC Structurals, Inc. decision as follows: (1) the proposed unit must share an internal community of interest; (2) the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed; and (3) considerationConsideration of the board’s decisions on appropriate units in the particular industry involved. If the petitioned-for unit is found to be inappropriate at any step, the inquiry ends.

Applying the three part test, the NLRB determined the petitioned-for unit was inappropriate under steps one and two. First, the NLRB found the employees in the petitioned-for unit did not share a community of interest. In particular, the NLRB noted FRTs and FRTIs: (1) belong to separate departments; (2) do not share any supervision with each other; and (3) have fundamentally different job functions. Accordingly, the NLRB concluded there was no community of interest that would support a bargaining unit. Second, the NLRB determined the petitioned-for unit’s interests were not sufficiently distinct from the interests of the excluded employees to warrant a separate bargaining unit. In particular, the NLRB identified numerous similarities between FRTs, FRTIs, and the excluded employees, including: (1) FRTs and FRTIs are integrated into the production line with the excluded employees; (2) FRTs, FRTIs, and the excluded employees work together to produce a single product; and (3) FRTs and FRTIs are in the same departments as excluded employees. Further, the NLRB noted the distinguishing factors were largely insignificant in the context of collective bargaining.  Overall, the NLRB concluded the interests shared by FRTs and FRTIs with excluded employees were far more significant than those that differentiated them. 

Accordingly, the NLRB vacated the Certification of Representative and dismissed the petition. 

IMPACT

It is important to note the foregoing opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. It may also be appealed to the appropriate U.S. court of appeals and, ultimately, to the U.S. Supreme Court.

The NLRB’s decision in The Boeing Company and International Association of Machinists and Aerospace Workers provides clear guidance on the process and factors for determining whether a petitioned-for unit is appropriate under the National Labor Relations Act and PCC Structurals, Inc. Further, the decision makes abundantly clear unions cannot isolate small subsections of a larger workforce to form bargaining units without good reason for doing so, i.e., unless the proposed group has its own community of interest and unique bargaining concerns.

© 2019 Dinsmore & Shohl LLP. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Christopher M. Jones Associate Labor Employment
Associate

Chris focuses his practice on various issues that arise in the workplace. He handles a wide range of employment litigation matters, including discrimination claims, retaliation claims, wrongful discharge claims, workplace injury claims and deliberate intent claims. He has also handled a number of transportation, multi-employer worksite, professional negligence, and product liability cases. His experience includes managing discovery throughout litigation, as well as conducting depositions and arguing motions before state and federal courts. He also has experience representing clients before...

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Brian Moore, labor and employment litigator, Dinsmore Shohl law firm,
Of Counsel

Brian represents companies in labor, employment, and general litigation matters. His business-oriented approach enables him to guide clients through a myriad of challenges. Brian draws on his experience to help clients reach efficient resolutions -- or pursue litigation and trial -- as the situation warrants. Working with clients in the banking, insurance, retail, health care, energy, hospitality, and food and beverage industries, he has guided them through an array of issues, including discrimination, harassment, wage and hour, deliberate intent, unfair labor practice, union representation, injunction, and general litigation matters. He has substantial experience practicing in both state and federal courts, including trying cases to verdict, as well as practice before the West Virginia Human Rights Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board. He has also drafted and litigated employment and arbitration agreements, covenants not to compete, and various other contracts.

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