A recent NLRB decision rendered under the Trump Board changed the process of determining the appropriate bargaining unit petitioned for by a union. The recent case is PCC Structurals. Inc. and International Ass'n of Machinists and Aerospace Workers, 365 NLRB No. 160 (12/15/17).

Under the law under the Obama Board – and arguably before that – a union could petition for a unit of virtually any size in an employer's workforce so long as the petitioned for unit was "readily identifiable" as a group based on factors such as job classifications, department, functions, work location, and skills. Not all factors were required for an appropriate unit; just enough to show a community of interest within the petitioned-for unit. Under the prior law, if the Board deemed the unit the union sought to represent was appropriate, the burden would then fall upon the employer to demonstrate that the petitioned-for unit is not appropriate and that the unit should include the additional employees. This was a difficult burden to satisfy, and as a result, it was rare that the employer could override the unit sought by the union.

It was under this legal framework that PCC Structurals. Inc. v. Machinists was decided by the Trump Board. In that case, the Union sought to organize a unit of 100 full and part-time rework welders and rework specialists at the facilities owned by PCC Structurals, Inc. ("Employer"). In opposition to this unit, the Employer claimed that the smallest appropriate unit was a wall-to-wall unit of 2,565 production and maintenance employees in 120 job classifications. The Employer argued that the entire manufacturing process was an integrated system and all employees shared a greater community of interest. Applying the traditional test under prior law, the Regional Director determined that the welders were appropriately a traditional cohesive unit based upon job classification, skills, certifications, and performing similar work in a single location. The Regional Director rejected the Employer's argument that the other employees shared an "overwhelming community of interest with" the welders such that there was no legitimate basis to separate them from the larger group. Thus, the Employer had not met its heavy burden of proving by overwhelming evidence that a larger unit was appropriate and that the unit of welders was inappropriate.

However, when this case went from the Regional Director to the new Trump Board, the analysis and test changed in favor of the Employer. The Board criticized the Obama Board as having granted virtually full authority to unions to determine and control the appropriate unit. Instead of looking at whether the petitioned-for unit itself shared certain interests, the Board ruled that the evaluation will now be whether the other units are so different and distinct as to preclude their inclusion in the more appropriate, larger unit. The unit sought by a union no longer enjoys any presumption of appropriateness, and an employer no longer bears an overwhelming burden of overcoming that presumption.

Thus the test has moved from one in which the question is whether the unit sought by the union shares interests as a unit, but whether that unit is so distinct from the other employees or units as to make a larger unit inappropriate. Indeed, one can assume that the burden has now virtually shifted to the union to show that the larger unit sought by the employer is not appropriate because it lacks the required community of interest.

Because the new case is so recent, there is little in the way of cases which would provide guidance on how the Board will now define an appropriate unit. It is likely that in an integrated operation, it will be hesitant to allow smaller units, even if they perform a single function involving a specific set of skills.