NLRB Creates New 3-Step Analysis for Unit Determinations

On September 9, 2019, the National Labor Relations Board (NLRB) issued its decision in The Boeing Company, 368 NLRB No. 67 (2019), clarifying an earlier ruling and reinstating the traditional community of interest standard for bargaining unit determinations.

In a 2017 decision, PCC Structurals, Inc., 365 NLRB 160 (2017), the NLRB rejected the use of “micro units”1 and ruled that when determining whether a proposed unit is appropriate, the Board must consider the traditional community of interests factors, and the interests of employees both within and outside the petitioned-for unit. However, the Board did not explain how the shared and distinct interests should be weighted. This ruling generated confusion among practitioners and adjudicators, prompting the Board to clarify how the shared and distinct interests should be weighed in a community of interests analysis.

In The Boeing Company, the International Association of Machinists Union filed a petition seeking an election for a bargaining unit of about 178 employees out of a total workforce of over 2,700 employees.  The Regional Director held that this petitioned-for unit, composed of only two classifications within the employer’s South Carolina production line, was appropriate under the NLRA. Following an election in the petitioned-for unit, which the union won, Boeing sought review from the Board, arguing that the two classifications were not an appropriate bargaining unit because they shared a community of interests with its larger workforce.

On review, the NLRB created a three-step process for determining an appropriate bargaining unit under the community of interests standard. Under this new process, to conclude that a proposed unit is appropriate, the NLRB must first consider whether the proposed unit shares an internal community of interest. If the employees share an internal community of interest, the NLRB must then  comparatively analyze and weigh the interest of those within the proposed unit and the shared and distinct interests of those excluded from the unit. Finally, the Board must also consider its prior decisions on appropriate units in the particular industry involved.

Using this three-step process, the NLRB reversed the Regional Director’s decision and vacated the election. The NLRB found that the proposed unit did not share an internal community of interest, and that it inappropriately excluded other employees with a high degree of functional integration, such those who were stationed on the same production line as the petitioned-for classifications.

Practical Implications

The Board’s new three-step evaluation process opens the door for employers to challenge the scope and composition of petitioned-for units. The union, however, could appeal the Board’s decision.  Moreover, the composition of the Board is subject to change following the 2020 presidential election. For the time being, employers facing representation elections should capitalize on the Board’s momentum, and where appropriate, seek modifications of proposed units based on the shared and distinct interests of the included and excluded employees. It is also recommend that employers work with experienced labor counsel to ensure their policies, and the implementation of those policies, favors the avoidance of micro units.

See Footnotes

​1 See Specialty Healthcare, 357 NLRB 83 (2011).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.