Biden Board vs. Trump Board: Here We Go Again! (Sixth Installment)

Last week, we provided you with the fifth of our six analyses of 14 decisions of the Trump Board that the soon-to-be Biden Board majority likely will seek to overrule in a rush to return to the more pro-union stance of the former Obama Board.

This Sixth installment of our Client Alerts addresses Micro-Units and Unit Scope; and Withdrawal of Recognition and Re-establishment of Union Majority, which concludes our series of Biden vs. Trump installments. 

A. MICRO-UNITS AND UNIT SCOPE.

In PCC Structurals, Inc., the Trump NLRB returned to the traditional community of interest test to determine the appropriateness of a proposed bargaining unit. 365 NLRB No. 160, slip op. at 30 (Dec. 15, 2017). The community of interest test is a multifactor analysis that determines whether employees in a petitioned-for unit share a community of interest sufficiently distinct from the interests of other employees who are proposed to be excluded from the petitioned for unit. Id. at 21. The relevant factors include: whether the employees of the petitioned-for unit are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, or perform the type of job that overlaps with other classifications, and the amount of overlap; are functionally integrated with the employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised. Id.

PCC Structurals overturned the Obama Board decision which held that a petitioned-for bargaining unit is presumptively appropriate when it consists of employees performing the same job at the same facility, even if other employees at the facility share common job functions, responsibilities, and work with the unit. Specialty Healthcare, 357 NLRB 934, 941 (2011). Specialty Healthcare was criticized because it led to the proliferation of “micro units,” as the party that opposed a proposed bargaining unit based on its exclusion of employees was required to show that the excluded employees shared an “overwhelming community of interest” with the employees in the proposed unit. Id. at 934. The Obama Board contended that this standard would be met where, for example, excluded employees who performed the same job worked a different shift or on a different floor of their employer. Id. at 946.

It is possible that the Biden Board could return to the Specialty Healthcare “overwhelming community of interest” standard even though this was one of the Obama Board’s most criticized decisions.

B. WITHDRAWAL OF RECOGNITION AND RE-ESTABLISHMENT OF UNION MAJORITY.

In Johnson Controls, Inc., the Trump NLRB held that, within 90 days before a collective bargaining agreement expires, an employer may anticipatorily withdraw recognition from a union, effective upon expiration of the agreement, if the employer has evidence that the union no longer possesses majority support. Johnson Controls, Inc., 368 NLRB No. 20, slip op at 7–8 (July 3, 2019). Importantly, the Trump Board also announced that, in order for the union to establish that it had subsequently reacquired majority support, the union must prevail in a secret ballot election filed within 45 days after the employer’s announcement that it will withdraw recognition. Id. at 8.

Johnson Controls partially overruled pre-Obama Board precedent, which held that the union could challenge the employer’s withdrawal of recognition through an unfair labor practice (“ULP”) charge. Levitz Furniture Co. of the Pacific, 333 NLRB 717, 725 (2001). Levitz required the employer to present evidence during the ULP proceeding that the union had lost majority support at the time of the employer’s withdrawal upon expiration of its collective bargaining agreement; but if the union had re-gained majority support before contract expiration (e.g., through newly signed union cards), then the withdrawal of recognition was unlawful. Id.

If the Biden Board returns to the rule in Levitz, an employer’s attempt to withdraw recognition from a union lawfully would be made more difficult, because, before the CBA expires, employees may – unbeknown to the employer – change their position on whether they object to union representation.

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