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

September 11, 2019– Legal Alerts

Christopher M. Jones and Brian J. Moore/Dinsmore & Shohl, LLP

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.

For more information regarding compliance with this decision, please contact your Dinsmore labor attorney.

For those of you who are members of DRI, turn to page 78 of the September 2019 edition of For the Defense where you will find an article authored by two KDC members:  W. Mitchell Hall, Jr.  (Immediate Past President of KDC) and Olivia Amlung.  Great job to both Mitch and Olivia!

If you are not a member of DRI, you can download the article here.  Using Int Ext Data.pdf  After reading the article, we think you will be compelled to also join DRI.  DRI is an international organization of civil defense attorneys that we align with as a state legal defense organization.  Being a member of both organizations can be only a positive for your civil defense practice.

KDC is pleased to welcome its two newest members:

Bryce L. Cotton of Blackburn Domene Burchett PLLC, Louisville is a University of Louisville Brandeis School of Law graduate.  Mr. Cotton practices in the areas of Auto, General Liability, Medical Malpractice, Nursing Home, Premises and Tort.  He is sponsored by KDC member, Katelyn C. Becker.

Megan E. H. Jordan of Brown & Breeding, PSC, London is a graduate of the University of Kentucky Law School.  Ms. Jordan practices in the areas of Auto & Trucking.  She is sponsored by KDC member, Bradford Breeding.

KDC is pleased to welcome:

Justin T. Baxter of Kinkead & Stilz, PLLC, Lexington.  Mr. Baxter is a graduate of the Pace University School of Law and Practices in the areas of Appellate, Construction, Medical Malpractice, Professional Liability and Tort.  He is a member of DRI and is sponsored by KDC member, Melanie Marrs Sublett.

Bryce C. Rhoades of Adams, Stepner, Woltermann & Dusing, PLLC, Covington.  Mr. Rhoades is a graduate of the Chase College of Law and practices in the areas of Civil Rights, Government Entity, and Municipal law.  He is sponsored by KDC President-Elect, Claire Parsons.

KDC welcomes its two newest members.

Matthew Cook of Kerrick Bachert, PSC, Bowling Green is a graduate of the University of Louisville, Brandeis School of Law.  Mr. Cook practices in the areas of Appellate, Bad Faith, Business Litigation, Civil Rights, General Liability, Government Entity, Insurance Coverage, Medical Malpractice, Municipal, Premises Liability, Product Liability and Tort.  He is a member of DRI and is sponsored by Tom Kerrick.

Joshua Johnson of Piper & Bowers, PSC, Lexington is a graduate of the University of Kentucky Law School.  Mr. Johnson practices in the area of Medical Malpractice and is sponsored by KDC member, Barbara Bowers.

KDC is pleased to welcome its newest member, Christopher E. Cotter of Roetzel & Andress, LPA, Akron, Ohio.  Mr. Cotter is a graduate of the University of Dayton School of Law and practices in the area of Trucking.  He is a member of DRI and sponsored by KDC member, Chad Sizemore.

Okay DRI members, take our your latest copy of DRI's publication For the Defense, then turn to page 6.  There is a terrific article written by KDC's 2018-19 President-Elect, Claire Parsons:  Three Mindfulness Tools to Help You Care for Your Brilliant Legal Mind.  Claire continually writes outstanding articles and it is a privilege to have her talent heavily involved at KDC.

Not a member of DRI?  Here's a pdf of Claire's article Mindfulness Tools .pdf.  To learn more about DRI, please contact Beth Lochmiller at blochmiller@clblaw.com or Todd Page at todd.page@skofirm.com.  They will be more than happy to share with you the benefits of a DRI membership.

If you're planning to attend the University of Kentucky v. University of Florida football game on September 14th, please consider dropping by KDC's "tailgate booth" prior to entering the stadium, or watch the game with us in the booth.  We will provide more detailed information once final plans are in place, i.e. location of booth, time, what to expect ...

While the event is complimentary, please register at Kentucky v. Florida Football Game so that we will have an estimate of individuals taking part in this social event.

Many thanks to the following law firms who have helped sponsor this event:

• Adams, Stepner, Woltermann & Dusing, PLLC
• Porter, Schmitt, Banks & Baldwin
• VanAntwerp Attorneys

We look forward to seeing a lot of you there!

Our Awards Committee is standing by awaiting receipt of members' nominations for the following awards:

• Diplomat (age 65 and over)
• Defense Lawyer of the Year
• Young Lawyer

Here is the form that should be completed (or just make sure all of the information requested is included in your typed document).  KDC 2019 Award Nomination Form.pdf

Please make sure the individual being nominated is a member of KDC.  That information can be found on the website.

Questions?  Please contact the KDC office.

Even though its free for KDC members, please register at Live CLE -- Medical Literature: Developing a Scientific Defense & Offense

 for KDC's August 21st webinar.  The program, "Medical Literature:  Developing a Scientific Defense and Offense" is being presented by Derek Holyoak of Exponent.

Non-KDC Members:  $75