October 22, 2019

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NLRB Puts a Finer Point on Its Community of Interest Test with a New Three-Step Analysis

Still hard at work as we head into mid-September, the National Labor Relations Board, in a 3-1 decision (Chairman Ring and Members Kaplan and Emanuel in the majority, Member McFerran dissenting) announced a three-step test which clarifies how petitioned-for partial workforce units are analyzed under the traditional community of interest factors.

In 2017, the Board in PCC Structurals, Inc., 365 NLRB No. 160 (2017) rejected the Obama-era Board’s “micro-unit” concept (overruling Specialty Healthcare, 357 NLRB 934 (2011)) and reinstated the previously long-standing traditional community of interest test for determining whether a proposed bargaining unit is appropriate.  Under that test, the Board may consider a multitude of factors to determine if the petitioned-for unit shares a community of interest “sufficiently distinct” from employees excluded from the unit.  Such factors include the organization of departments, skills and training of employees, job functions, functional integration, contact, interchange, terms and conditions of employment, shared or separate supervision, and prior bargaining history.  The Board, however, did not provide further guidance on how to apply the factors.

Earlier this week, in The Boeing Company, 368 NLRB No. 67 (2019), the Board applied PCC Structurals and the traditional community of interest factors and rejected the petitioned-for unit that included just two classifications, Flight-Line Readiness Technicians (“FR Technicians”) and Flight-Line Readiness Inspectors (“FR Inspectors”), amounting to approximately 178 employees among the 2700 total production and maintenance employees working at Boeing’s South Carolina airplane manufacturing plant.  In doing so, it provide new guidance on how it will apply the community of interest test to bargaining unit requests.

The Board articulated a three-step process for determining whether a petitioned-for unit is appropriate under the traditional community of interest standard, as follows:

  • Step One: Shared Interests Within the Petitioned-For Unit. Per the Board, the analysis begins by assessing whether the classifications in the petitioned-for unit share sufficient interests among themselves, pursuant to the traditional community of interest criteria, discussed above.  If the putative members of the petitioned-for unit do not share sufficient interests, the unit is not appropriate, and the inquiry ends there.

  • Step Two: Shared Interests of Petitioned-For and Excluded Employees. Under the second step, the Board requires a comparative analysis to determine if the interests of employees excluded from the petitioned-for unit are sufficiently and meaningfully distinct and outweigh any similarities with those included in the petitioned-for unit.  If such distinct interests do not outweigh similarities, the unit is inappropriate, ending the inquiry.

  • Step Three: Special Considerations of Facility, Industry, or Employer Precedent. Pursuant to the third and final step, the Board explained that the analysis considers guidelines, if any, the Board has previously established for specific industries regarding appropriate unit configurations.

The Board Rejects the Small Unit Using the Three-Step Analysis in Boeing

After establishing the above-described three-step test, the Board applied that test to the facts at issue in Boeing.

Step OneShared Interests Within the Petitioned-For Unit.

The Board found that the FR Technicians did not share interests with the FR Inspectors sufficient to establish a community of interest within the petitioned-for unit.  In so finding, the Board relied on the fact that FR Technicians and FR Inspectors were in separate departments, did not share any supervision, had different job functions, and a lack of interchange between the classifications.  Taken together, the Board found the interests shared between the two classifications were too disparate to form a community of interest, and the petitioned-for unit was therefore inappropriate.

Step TwoShared Interests of Petitioned-For and Excluded Employees.

Although the Board’s Step One analysis could have ended the inquiry, the Board continued its analysis under Steps Two and Three in order to illustrate application of the newly-developed test.  Accordingly, under Step Two, the Board found that the excluded employees did not possess interests which were sufficiently and meaningfully distinct from, and did not outweigh similarities with, the interests of the petitioned-for unit of FR Technicians and FR Inspectors.

Specifically, the Board found that there was a high degree of functional integration among the excluded and included employees, and that the included classifications were in the same departments as excluded employees and shared supervision, shared most terms and conditions of employment, and shared most of the same skills and training.  The Board further found that any distinguishing factors between the included classifications and excluded employees were “relatively insignificant” for collective bargaining purposes.

The petitioned-for unit was thus also not appropriate under Step Two.

Step ThreeSpecial Considerations of Facility, Industry, or Employer Precedent.

Finally, under Step Three, the Board found that there were no industry-specific guidelines applicable to the instant case.

Taken together, the Board concluded that the petitioned-for unit was inappropriate, vacated the Union’s certification, and dismissed the petition.

*          *          *

The Board has been particularly active lately addressing both long-standing precedent and more recent changes from the previous administration, issuing new decisions almost daily.  Stay tuned for more posts covering these latest decisions, undoubtedly of interest to employers and unions alike.

© 2019 Proskauer Rose LLP.

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About this Author

Michael J, Lebowich Partner Proskauer Labor-Management Relations Strategic Corporate Planning Higher Education and Title IX
Partner

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues....

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Laura Franks Labor and Employment Lawyer Proskauer Rose
Associate

Laura Franks is an associate in the Labor & Employment Law Department.

Prior to joining Proskauer, Laura graduated from University of Virginia Law School where she was the Executive Editor of the University of Virginia Sports & Entertainment Law Journal. Laura was also a member of the Innocence Project at the University of Virginia School of Law clinic and was President of the Virginia Sports Law Society. While in law school, Laura interned with the National Hockey League and the University of Virginia Office of the General Counsel. 

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