NAM Files Brief to Overturn NLRB Decision on Technical Refusal to Bargain

In the wake of the 2011 Specialty Healthcare decision by the National Labor Relations Board (NLRB), the country has seen a proliferation of so-called “micro-units” instead of the traditional “wall-to-wall” bargaining units. The change in the test for determining the appropriate size of a bargaining unit has led to the creation of these smaller micro-units even when every other factor, especially common sense, points in the opposite direction.

In the case underlying the current action, the NLRB issued a decision against Nestle Dreyer, saying that they improperly failed to bargain with a newly-created micro-unit within their organization, which is composed solely of maintenance workers. The decision was originally issued in 2012 and was invalidated pursuant to the Noel Canning decision, but was reaffirmed in 2014 by a newly appointed Board. This is in spite of statutory and legislative precedent and bargaining history saying that it would be appropriate for the unit to be composed of maintenance and production workers.

We argue in our brief, filed in the Court of Appeals on January 13, that the NLRB erred on multiple fronts in its decision in order to come down on the side of favoring micro-units. It ignored both the previous bargaining history as well as the Board’s own precedent that production and maintenance units are presumptively appropriate.

The spread of these micro-units is leading to an increasingly fractured workplace and contentious interactions between employers, employees and unions. Manufacturing facilities should be wary about their workers being broken in to smaller discrete units.

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