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Total Articles: 19

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.

NLRB Rulings Make It Harder to Organize Micro-Bargaining Units, Easier to Change Contract Terms

The National Labor Relations Board (NLRB) issued two rulings this week that shift the labor relations landscape in employers' favor. The first ruling makes it more difficult for a union to organize a micro-unit within an organization. The second adopts a new standard for determining whether a unilateral change of a term or condition of employment by an employer violates the National Labor Relations Act (NLRA) requirement to bargain changes with the union.

NLRB Limits Application Of “Micro-Unit” Strategy

In a blow to national union organization efforts, the National Labor Relations Board just clarified the test for determining whether “micro-units” of employees within a larger workforce can organize on their own. In its September 9 Boeing Company decision, the NLRB addressed a union’s efforts to utilize a “micro-unit” strategy to target a petitioned-for unit that made up of only two job classifications from a significantly larger, integrated workforce. In reversing a Regional Director’s decision to allow a representation election with this smaller subset of employees, the NLRB clarified its traditional community-of-interest standard for evaluating the appropriateness of petition for bargaining units.

Bargaining Unit Can Still Be ‘Micro’ under ‘Community of Interest’ Standard

After the NLRB adopted a new standard for determining bargaining-unit composition, many expected fewer micro-units would result. PCC Structurals, 365 NLRB No. 160 (2017) (PCC I). However, when the employer filed a request for review (appeal) of the Regional Director’s decision allowing, on remand, a “micro-unit” of its employees to vote on union representation under the new standard, the NLRB denied it. PCC Structurals, Inc., No. 19-RC-202188 (Nov. 28, 2018) (PCC II).

Is That Robot in the Bargaining Unit?

Drones fly over the jobsite, snapping photos of progress and scanning the area for possible safety concerns. A 3D-printer churns out customized parts and scaled models. A remote-controlled robot lays bricks meticulously, with near-perfect precision and five times faster than a human.

NLRB Tosses "Overwhelming Community of Interest" Standard and Returns to the "Traditional Community of Interest" Standard in Determining Appropriate Bargaining Units

Executive Summary: On December 15, 2017, the National Labor Relations Board (NLRB or Board) overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which required an “overwhelming community of interest” when determining the appropriateness of a bargaining unit, and returned to the “traditional community of interest” standard that the Board has applied throughout most of history. See PCC Structurals, Inc. and International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge W24, Case 19-RC-202188.

New NLRB GC Opens Door to Possible Widespread Bargaining Unit Changes

The National Labor Relations Board General Counsel’s Division of Operations Management has issued a sweeping Memorandum to Regional Offices setting forth a variety of circumstances under which those offices should process “currently active [representation] cases” applying the NLRB’s recent decision (PCC Structurals, Inc.) that overruled Specialty Healthcare.

Fifth Circuit Upholds Micro-Bargaining Unit at Retailer, But Dissent Finds Labor Board’s Legal Standard Wanting

The U.S. Court of Appeals for the Fifth Circuit has denied, 9-6, a retailer’s request for a rehearing of the decision of a three-judge panel of the Court upholding the National Labor Relations Board’s decision that the retailer must bargain with a unit limited to employees in its cosmetic and fragrance department. Macy’s, Inc. v. National Labor Relations Board, No. 15-60022 (Nov. 18, 2016).

Overruling Precedent, NLRB Holds Bargaining Units of Jointly and Solely Employed Employees May Elect Union Representative Absent Consent of Their Employers

In a departure from more than a decade-long precedent, the National Labor Relations Board has held that Board-conducted representation elections in bargaining units combining employees who are (a) jointly employed by a user employer and supplier employer and (b) solely employed by the user employer do not require the consent of either employer. Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016).

NLRB Paves the Way for Bargaining Units Composed of Employees of Two Different Employers

In a widely anticipated decision, the National Labor Relations Board has reversed its 2004 decision in Oakwood Care Center,1 and determined a union seeking to represent employees in a bargaining unit composed of employees solely employed by a “user employer” (a company that hires temporary workers) and those jointly employed by the user employer and temporary labor provider is not required to obtain the consent of both employers. In Miller & Anderson, Inc.,2 the Board held that in determining if a combined unit is appropriate, it will apply traditional “community of interest” factors.

The Other Shoe Drops—The NLRB’s “Contingent Workforce” Activism Continues

The National Labor Relations Board (NLRB) will now permit a single bargaining unit to include employees who are solely employed by an employer along with other employees who are jointly employed by that employer and a staffing provider, all without the consent of either employer. The NLRB’s July 11, 2016 decision in Miller & Anderson, Inc. overturns more than a decade of precedent under the NLRB’s 2004 Oakwood Care Center decision, in which the NLRB previously held that jointly-employed employees could not be included in a bargaining unit with solely-employed employees unless both employers consent to the multi-employer bargaining arrangement. In overturning Oakwood Care Center, the NLRB expressly reverted to the NLRB’s rule set forth in its 2000 decision in M.B. Sturgis, Inc.

NLRB Allows Bargaining Units With Temporary, Permanent Employees Without Employer Consent

In Miller & Anderson, Inc., the National Labor Relations Board has ruled that employer consent is not required for bargaining units that combine jointly employed and solely employed employees of a single employer. The Board reasoned that these units are appropriate so long as the contingent and regular employees "share a community of interest."

NLRB Holds Employer Consent Not Required for a Union to Represent a Bargaining Unit Combining both Regular and Temporary Employees

Executive Summary: In a July 11, 2016, decision that will make it easier for unions to organize temporary employees, the National Labor Relations Board (NLRB) overruled existing precedent and held a union may represent a bargaining unit consisting of both regular employees and temporary employees supplied by another employer even if the employers do not consent. See Miller & Anderson, Inc., 364 NLRB No. 39 (2016). Previously, the NLRB would not permit an election in a bargaining unit that combined employees from more than one employer unless all employers agreed. This decision increases the likelihood that employers who use temporary employees will become enmeshed in labor relations disputes involving those temporary employees.

NLRB Drops 30-Year Precedent on Employers’ Right to Unilaterally Oust Unions Representing ‘Mixed-Guard’ Units

A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards.

Another Court of Appeals Upholds NLRB’s ‘Micro-Unit’ Policy for Union Elections

The Fifth Circuit Court of Appeals, in New Orleans, is the latest circuit court to uphold the National Labor Relations Board’s restrictive “micro-unit” approach to voting units in NLRB elections adopted in Specialty Healthcare, 357 NLRB No. 83 (2011). Macy’s Inc. v. NLRB, No. 15-60022 (5th Cir. June 2, 2016).

Legal Alert: 6th Circuit Affirms NLRB, Requires "Overwhelming Community of Interest" To Challenge Bargaining Units

Executive Summary: The Sixth Circuit Court of Appeals has affirmed the decision of the National Labor Relations Board (NLRB) in Specialty Healthcare, which requires employers to prove employees share an "overwhelming community of interest" to successfully challenge the composition of a bargaining unit. The court held that: (1) the Board may depart from its own precedent if it explains its decision and the departure is not arbitrary and capricious; (2) the Board's clarification and use of its "overwhelming community-of-interest" standard was clearly explained and therefore not an abuse of its discretion: (3) the Board did not violate the National Labor Relations Act (the Act) because it based its decision on factors beyond the extent of the union's organization efforts; and (4) the Board did not abuse its discretion by choosing to follow an already existing principle through adjudication instead of rulemaking. See Kindred Nursing Centers East v. NLRB (Aug. 15, 2013).

Fragmented Workforces: Specialty Healthcare and the Advent of “Micro-Units”

The National Labor Relations Board recently made it easier for unions to win representation elections by allowing unions to fragment workforces and cherry-pick the unit of employees most likely to support unionization. On March 20, 2013, this happened to a plumbing contractor’s workforce in Fraser Engineering Company, 359 NLRB No. 80 (2013), where the Board recognized a smaller unit of plumbers and pipefitters after having approved a larger unit only two years prior (when the union lost the election). Such “micro-units” were made possible by the Board’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011). There, the Board substantially altered its traditional community-of-interest analysis for unit determinations, which considered factors such as:

Another Pro-Union Decision by the NLRB: Unions Now Allowed to Organize Select Employee Groups Instead of Companywide

In the latest move by the National Labor Relations Board (“the Board”) making it easier for unions to organize, the Board ruled on December 30, 2011, that unions may now target select groups of employees instead of organizing larger groups of employees with general common interests company- or facility-wide. In a case involving Northrop Grumman Shipbuilding, Inc., the Board affirmed a Regional Director’s order directing an election for a union-selected unit consisting only of nuclear safety technicians at a shipyard that builds nuclear-powered aircraft carriers and submarines. In other words, the Board allowed the union to carve out only the technicians the union wanted to organize, ignoring the other technicians at the facility even though they shared some community of interests with the nuclear safety technicians.

Retail Industry: Multi-Location Retail Store Not "Appropriate" For Bargaining.

The National Labor Relations Board (NLRB) recently held that a proposed bargaining unit of 32 Connecticut stores of Sleepy's Inc. was not an appropriate multi-location bargaining unit. The decision, by board members Leibman and Schaumber, provides insight into how a retailer's operations can impact the scope of a bargaining unit should organizing efforts take place.
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