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Micro-Bargaining Units: Can Employers Win Before the NLRB?

By Mark D. Nelson

The National Labor Relations Board has ruled, once again, that an employer failed to show “an overwhelming community of interest” between employees in the small (i.e., “micro”) bargaining unit sought by the union.  Few, if any, employers have successfully challenged a union-proposed bargaining unit on this standard established by the Board’s watershed 2011 Specialty Healthcare decision.   The recent case of DPI Secuprint Inc., 362 NLRB No. 172 (August 20, 2015), underscores the employer’s high burden on this issue.  It may be advisable in many cases to focus resources elsewhere when opposing a union petition.

In DPI Secuprint Inc., the union petitioned for a bargaining unit at a commercial printing company that included 14 of 20 hourly employees, excluding three offset-press operators and three offset-press feeder-tenders.  The employer challenged the exclusion of these employees on the grounds that they shared an “overwhelming community of interest” with the other hourly employees.  The Acting Regional Director found that the unit requested by the union was an appropriate unit.  He found that there was functional integration among the departments of the petitioned-for employees because each one handled “an aspect of producing a single product.”  He also found:  “a high degree of contact among the petitioned-for employees; some ad hoc job interchange; that although the skills and functions of the various petitioned-for employees differ, none requires any prior training; that all of the unit employees had at least a common second-level supervisor; and, the petitioned-for employees share roughly similar wages, hours, benefits, and working conditions.”

The Acting Regional Director rejected the employer’s argument that the offset-press employees should be included in the unit, finding that the offset-press employees are more highly skilled and take longer to train than the unit employees, they work different schedules and that they are treated differently when work is slow; the offset-press employees are allowed to stay on the job while the other employees are sent home.  Thus, they did not share an overwhelming community of interest with the employees in the petitioned-for unit.

He also rejected the employer’s argument that well-established Board precedent requires that the offset-press employees be included in the unit.  The employer cited two decisions in which the Board held that a unit limited to offset-press employees was not appropriate because it excluded prepress employees. (AGI Klearfold LLC, 350 NLRB 538 (2007), Moore Business Forms, Inc., 216 NLRB 833 (1975)) He found that AGI Klearfold only requires the Board to give “appropriate weight” to the traditional lithographic unit that includes both offset-press and prepress employees.  He also stated that in AGI Klearfold  and Moore Business Forms there was regular contact between the offset-press employees and the petitioned-for employees.

On appeal, a Board majority (Chairman Pearce and Member Hirozawa) upheld the Acting Regional Director’s decision.  The majority reiterated that a proposed unit will not be rejected simply because a more appropriate unit exists.  According to the Board majority, although the offset-press employees shared some community-of-interested factors with the petitioned-for employees, including common supervision, functional integration, the same benefits and “roughly similar pay rates,” these factors did not establish an overwhelming community of interest.

Following Specialty Healthcare, it appears to be extremely difficult for an employer to meet the “overwhelming community of interest” standard.  It appears that a union will get whatever unit it desires, unless it makes a blunder and seeks a unit that includes only part of a job classification, department or function.  Since union election win rates increase as the size of the bargaining unit decreases, prevention of union organizing may be the only practically viable alternative for some employers.