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Labor Board’s ‘Micro Unit’ Test Teed Up for Appellate Review

Nov. 27, 2019, 9:44 PM

An Oregon-based manufacturing company’s opposition to a union gave the Trump labor board a chance to tighten the legal test for approving smaller bargaining units for union elections two years ago. Now the way is clear for that company to challenge the application of that test in federal appeals court.

The National Labor Relations Board on Nov. 27 ruled that PCC Structurals Inc. unlawfully refused to bargain with an International Association of Machinists Union affiliate that represents a unit of the company’s welders. Despite the legal framework being more employer-friendly, the board approved a smaller unit of PCC workers in 2018.

Board procedure typically doesn’t allow employers to challenge unit determinations directly, so they must manufacture an unfair labor practice case to serve as a vehicle to appeal the underlying unit decision. Unions don’t have this option if the unit they petition to represent is rejected.

An appeal by PCC would give a federal appeals court the chance to weigh in on the NLRB’s test for what some employer groups have labeled “micro units.”

The NLRB applied its current legal test in a September ruling that rejected a smaller bargaining unit of technicians at a Boeing Co. plant in South Carolina. The board restated its test in that ruling, signaling that the NLRB thought the standard was being misapplied.

The NLRB’s legal test for smaller units has been one of the most hotly contested labor law issues over the past decade. Employers argued that the board’s standard from its 2011 decision in Specialty Healthcare was too permissive, allowing unions to gerrymander favorable units.

The NLRB overturned Specialty Healthcare in its 2017 ruling in PCC Structurals. That decision dropped a requirement for the employer to show that workers outside of a petitioned-for smaller unit had an overwhelming community of interest with those in that unit.

Attorneys for PCC and the Machinists weren’t immediately available for comment.

The case is PCC Structurals, N.L.R.B., Case 19-CA-207792, 11/27/19

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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