Keeping With Tradition: NLRB Clarifies Three-Step Approach to Bargaining Unit Determinations

The National Labor Relations Board (NLRB) is tasked with determining whether a petitioned-for bargaining unit of employees is considered an “appropriate unit” for collective bargaining. The Board’s objective is to group employees who share a substantial mutual interest in wages, hours and other conditions of employment. In 2017, the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160, announced the return of the traditional community-of-interest standard. Under this standard, the petitioned-for employees for a unit must share a “community of interest” that is sufficiently distinct from those employees excluded from the proposed unit in order to warrant separate units. The Board weighs several factors under the traditional community-of-interest standard to determine an appropriate bargaining unit. The Board is not required to find the most appropriate unit. If a proposed bargaining unit is appropriate, the inquiry ends. In determining whether a petitioned-for unit is appropriate, PCC Structurals stated the NLRB will consider both the shared interests and the distinct interests of the petitioned-for and excluded employees. However, confusion remained as to how to weigh those interests.

On September 9, 2019, the NLRB’s decision in The Boeing Company, 368 NLRB No. 67, clarified the three-step approach for determining an appropriate bargaining unit under the traditional community-of-interest test.

A Straightforward Framework

The NLRB’s Boeing decision provided guidance on how to properly apply the weighing of interest standard.

• First, the NLRB will determine whether the proposed unit has an internal community of interest.
• Next, the NLRB will weigh the interests of those within the proposed unit against the shared and distinct interests of those being excluded. The excluded employees must have meaningfully distinct interests in the context of collective bargaining that outweigh the similarities to unit members.
• Finally, the NLRB will take into account the Board’s established guidelines for specific industries.

In The Boeing Company, Boeing sought review from the NLRB following an election in the petitioned-for unit, which the union won. Boeing argued that the two classifications for the bargaining unit – including about 178 employees out of a total workforce of over 2,700 employees – was not appropriate because they shared a community of interest with its larger workforce.

Applying this three-step process, the NLRB sided with Boeing and found that the petitioned-for unit was inappropriate – both because the employees in the unit did not share an internal community of interest and because their interests were not sufficiently distinct form the interest of those excluded employees.

The Implications for Employers (And Unions)

The Boeing decision provides clarity and guidance to employers to facilitate collective bargaining. The decision gives employers a workable framework and marks a clear return to the traditional and practicable standard for determining appropriate bargaining units. Moreover, the decision further limits any application of a micro-unit strategy, which unions may try to use to circumvent NLRB procedures or target smaller subsets of a workforce to win a union election.