Unions May Continue Pushing Smaller Bargaining Units

Boeing and PCC union elections succeed despite NLRB reversal on ‘micro unit’ standard

The NLRB’s new stance on so-called “micro units” might not discourage unions from proposing smaller bargaining groups to win elections.

On May 31, a small group of workers at a Boeing plant in South Carolina voted to join a union, but the company will challenge the bargaining unit, calling it a federally prohibited “micro unit.” An NLRB regional director had approved the International Association of Machinists’ proposed unit of 176 technicians at the jetliner facility, which has about 7,000 employees total, according to Boeing. 

Unions often have an easier time winning an election with a smaller subset of employees than the traditional wall-to-wall bargaining groups that encompass a whole workplace. Though the NLRB under President Trump has made it easier for employers to successfully challenge unions that propose smaller bargaining units, management-side labor attorneys expect unions to continue using the strategy. It remains to be seen whether small bargaining groups will actually boost union membership on a large scale, however.

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When a union petitions for an election for a group of employees, it has to show that those employees share common work factors, such as job functions, locations and departments. The employer may argue that the petitioned-for group is too small — i.e., the union inappropriately excluded certain employees from that group. Previously, the employer would have had to show that the excluded workers shared an “overwhelming” community of interest with the group in the petition. The “overwhelming” standard, borne from the NLRB’s 2011 decision in Specialty Healthcare, was difficult for employers to meet.

But on Dec. 15, the board overturned the Specialty Healthcare standard. That decision came after an NLRB regional director allowed a unit of 100 welders who worked for a subsidiary of Precision Castparts Corp. in Portland, Oregon, to vote to unionize last year. PCC Structurals’ full Portland-area roster of 2,500 employees had previously voted against joining the International Association of Machinists. The smaller unit of welders, however, voted 54 to 38 to join the IAM in September. PCC challenged the election, and when the NLRB took up the appeal, the board used that case to return to the old community-of-interest test.

But even after the board’s reversal, the small unit of PCC welders would still stand. The NLRB regional director who first greenlighted the election reviewed the bargaining unit on remand. On May 4, he determined that the welders-only group was still appropriate even under the pre-Specialty Healthcare standard, “as it is a craft unit that shares a community of interest sufficiently distinct from excluded employees.” According to a report by the Oregonian, the IAM leaders said the victory would help them push to unionize a larger share of the workers at PCC.

Unions may propose a micro unit when they are having difficulty organizing the majority of a workplace’s employees. In both the PCC Structurals and Boeing cases, IAM had failed previous organizing attempts before they drew up the smaller bargaining groups.

“It’s a way to get into a workforce that doesn’t otherwise want a union,” said Bill Berger, a solo attorney who practices labor and employment law out of his firm, L2S Legal. “If the workforce did otherwise want the union, they’d vote for the union, and the union would represent the whole bargaining unit.”

A fractured bargaining unit — representing perhaps 100 workers out of several thousand — can be tricky and unfamiliar for an employer to deal with. For example, the unionized cadre might ask to be paid and promoted according to a seniority scheme when the rest of the company gets paid based on productivity. Granted, the company must negotiate in good faith, but it isn’t required to reach an agreement with the minority bargaining group, Berger said.

Even under the traditional community of interest standard, “there’s plenty of room for the unions to pick the size of the unit,” Berger said. He added that the Boeing case doesn’t appear to be a true micro unit. “It looks like what they did was just redefine a smaller unit.”

Steve Suflas, a labor and employment attorney who is managing partner of Ballard Spahr’s Denver office, said unions see advantages in the minority unit strategy.

“I think unions will continue to press for organizing in smaller bargaining units. It’s easier,” Suflas said. “And once you’re in, you’re in.”

If the union can reach contracts and satisfy its membership at the company, it can try to sell those results to the larger worker population, Suflas said. “By winning an election in a small group, now everyone else can see what the union can do for you, and then you can organize more broadly.”

Berger said that while unions may continue to use fractured bargaining units to gain a foothold in a workplace, he’s skeptical that it will help them win over the rest of the employees.

“If they can’t get the whole unit, it’s for a reason,” Berger said. If the union can’t convince a majority of the workers to unionize, there’s a problem for the union that will likely still be there even when it succeeds in organizing a smaller unit. Micro units can also disrupt worker camaraderie when the union creates what amounts to a middle school “clique” in the workplace, Berger said.

Berger and Suflas each noted that even as it can be easier for unions to win elections with so-called micro units under Specialty Healthcare, the strategy didn’t seem to boost union membership overall. Union membership among U.S. wage and salary workers continued its steady decline from 11.8 percent in 2011 to 10.7 percent in 2017, according to the Bureau of Labor Statistics.

If unions begin losing NLRB determinations on micro units and then appeal them to the appellate circuit courts, an “interesting issue” will likely emerge, Suflas said. Six of the circuits have affirmed the NLRB’s Specialty Healthcare standard as a reasonable interpretation of the statute. But a union appeal would put the Trump-era NLRB in the awkward position of asking the courts, to judges’ irritation, to “forget” the Specialty Healthcare standard the agency fought to have affirmed just a few years previous, Suflas said.

— Doug Chartier

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