Burr & Forman

12.17.2019   |   Articles / Publications

South Carolina Employment Law Letter: NLRB Overturns Boeing ‘Microunit’ Election at North Charleston Plant

Reviewing election results at Boeing’s facility in Charleston, the National Labor Relations Board (NLRB) recently determined the petitioned-for voting unit made up of employees in two job classifications was invalid because the employees didn’t share a community of interest with one another, nor did they share a community of interest sufficiently distinct from the interests of other production and maintenance employees who were excluded from the voting unit. Read on to see why the NLRB issued this ruling.

Facts
The Boeing Company manufactures commercial 787 aircraft at its facility in North Charleston. The complex, integrated production line on which the sophisticated aircraft are built is staffed by approximately 2,700 production and maintenance employees, and each aircraft requires the completion of about 9,000 tasks, called “Shop Order Instances” (SOIs), over about 119 days.

Broadly, production consists of constructing the airplane’s tail in the Aft Building and the body and wings in the Mid-Body Building. Those sections then travel to the Final Assembly Building, where they are joined together and additional components are installed. In each of the three buildings, technicians perform the work, and quality inspectors check their work.

After final assembly, the airplane is towed across a taxiway to the Flight Line, which consists of nine stalls, each with a workspace and a break room. At the Flight Line, the aircraft is fully powered up for the first time, tested, certified, and delivered to the customer.

The technicians permanently assigned to the Flight Line are called flight-line readiness technicians (FRTs), and the quality inspectors permanently assigned to the line are called flight-line readiness technician inspectors (FRTIs). The International Association of Machinists and Aerospace Workers petitioned the NLRB to represent a unit consisting of only FRTs and FRTIs, about 178 employees.

FRTs and FRTIs respectively perform and inspect three types of work on the Flight Line:

  1. FRTs perform about 107 SOIs exclusive to the Flight Line (but FRTIs do not always inspect the work), such as fueling the aircraft for the first time and conducting numerous preflight checks. Many of the checks repeat tasks that were performed in previous stages, although the airplane is fully operational at the Flight Line stage.
  2. They rework SOIs completed during previous stages if problems are found on the Flight Line.
  3. They complete traveled work, which are SOIs that weren’t finished at an earlier stage (e.g., during final assembly) but should have been completed. There are routinely a significant number of SOIs that travel, from as few as 75 to more than 450, because parts were unavailable or because of other issues.

By hours spent, about 14% of FRTs’ and FRTIs’ work is rework and traveled work. By number of SOIs completed and inspected, the share of rework and traveled work is much higher.

A travel team of 10 or more technicians from the Final Assembly Building is regularly on the Flight Line to help with traveled work. Other technicians from earlier stages also come to the Flight Line as needed. Inspectors based on earlier stages of the production line sign off on a portion of the traveled work and even sign off on 11% of the SOIs exclusive to the Flight Line. There is a 10- employee cabin systems team permanently assigned to the Flight Line to work on cosmetic features in the
cabin.

Once an aircraft is certified by the Federal Aviation Administration (FAA), it enters “repair station status.” Employees who work on the airplane at this point must hold a qualifying certification and are subject to mandatory drug testing. Repair station status, on average, lasts only the final four or five days the aircraft is on the production line.

Boeing requires FRTs and FRTIs to hold an airframe and powerplant (A&P) license, an FAA-required certification, so they have the flexibility to work on aircraft in repair station status. An A&P license requires the technician to complete 1½ to 2½ years of schooling consisting of classroom and hands-on work and pass written, oral, and practical tests. Only about 6% of employees excluded from the unit hold an A&P license. FRTs and FRTIs share most other skills and training with the excluded technicians and inspectors.

FRTs belong to Boeing’s operations department with other technicians throughout the facility. FRTIs are in the quality department with the rest of the production line’s quality inspectors. In addition to being in separate departments, FRTs and FRTIs work under entirely separate supervisory structures, all the way up to the CEO. FRTs are supervised by nine operations managers, two of whom also supervise excluded employees on the cabin systems team. FRTIs are supervised by field quality managers, who also give direction to inspectors based in earlier production stages while they’re working on the Flight Line. FRTIs also share supervision at the second level with other employees excluded from the unit.

The excluded employees have never interchanged into either FRT or FRTI roles. Before 2017, FRTs and FRTIs were occasionally temporarily loaned to other production stages that were behind or when the Flight Line lacked work. In 2017, there was more temporary interchange because of a shortage of work on the Flight Line. Boeing reassigned 30 FRTs to earlier production stages for about six months, selected several FRTs to work on a special project with technicians from other stages, and rotated at least eight FRTIs into final assembly. There has never been any interchange between FRTs and FRTIs.

FRTs and FRTIs earn higher wages than many, but not all, of the excluded employees. Beyond a few minor differences, such as being able to wear shorts and having slightly different shift times, FRTs and FRTIs share all other terms and conditions of employment with the excluded production and maintenance employees. All production and maintenance employees have the same timekeeping system, the same payroll and direct deposit system, the same performance management system for determining pay and pay increases, the same attendance guidelines, the same overtime system, the same corrective discipline system, the same policies for environmental health and safety, the same hiring process, the same leave policies, the same healthcare benefits and dental plan, the same voluntary investment plans, the same life insurance and disability plans, the same flexible spending accounts, the same gift-matching program, the same physical fitness program, the same cash awards program, the same badge protocols, and the same badge protocols, and the same alternative dispute resolution program.

NLRB’s analysis

The NLRB’s inquiry necessarily began with the petitioned-for unit. The Board reaffirmed that a proposed unit need only be most appropriate unit. Next, the Board noted that in determining whether the petitioned-for unit is appropriate, it must consider both the shared interest and the distinct interests of the petitioned-for and the excluded employees. To analyze those standards, the Board has fleshed out a three-step process for determining an appropriate bargaining unit under the community-of-interest test.

Shared interests within petitioned-for unit. The first step requires the identification of shared interests among members of the petitioned-for unit. If the interests shared by the petitioned-for employees are too disparate to form a community of interest within the petitioned-for unit, the community-of-interest standard is not satisfied. A unit without an internal shared community of interest is inappropriate.

The NLRB found that, on balance, the interests shared by FRTs and FRTIs are too disparate to form a community of interest within the petitioned-for unit. FRTs and FRTIs do share some interests that weigh in favor of the petitioned-for unit. They are subject to nearly identical terms and conditions of employment, have frequent daily contact with one another on the Flight Line, and share many of the same skills and much of the same training, including the training required for an A&P license.

But FRTs and FRTIs also have significantly different interests in the context of collective bargaining. They belong to separate departments and do not share any supervisors, immediately or at any level below CEO. Beyond working toward completing the same SOIs, they have fundamentally different job functions: FRTs are technicians who do the mechanical work, and FRTIs are inspectors who ensure quality. Moreover, there has never been any interchange between employees in the FRT and the FRTI classifications.

Lacking an internal community of interest, the petitioned-for unit was deemed inappropriate at the first step. However, the NLRB didn’t stop the analysis at this step but went on to examine the remaining two.

Shared interests of petitioned-for and excluded employees. This step requires a comparative analysis of excluded and included employees. The inquiry must examine whether excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh their similarities with unit members. If their distinct interests do not outweigh their similarities, the unit is inappropriate.

The NLRB must analyze the distinct and similar interests and explain why, taken as a whole, they do or don’t support the appropriateness of the unit. Merely recording similarities or differences between employees doesn’t substitute for an explanation of how and why their collective bargaining interests are relevant or support the conclusion. Explaining why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation.

The NLRB found that FRTs and FRTIs have a high degree of functional integration with the excluded employees on Boeing’s 787 production line. The 2,700 production and maintenance employees stationed throughout the production line all work toward a single result: building the 787 aircraft. The 178 FRTs and FRTIs included in the petitioned-for bargaining unit are exclusively responsible for only about 107 of the 9,000 SOIs, or about 1% of the tasks necessary to deliver a single aircraft to a customer. Otherwise, they aid earlier production stages by finishing and fixing many SOIs alongside or in place of the excluded employees. As the Board has observed in previous cases, it is “particularly inappropriate to carve out a disproportionately small portion of a large, functionally integrated facility as a separate unit.”

In addition, FRTs are in the same department as excluded technicians, and FRTIs are in the same department as excluded inspectors. FRTs and FRTIs separately share overall supervision with excluded technicians and inspectors, including some immediate and secondary supervisors. FRTs and FRTIs have meaningful similarities in job functions with the excluded employees. A significant 14% of FRTs’ and FRTIs’ functions by time spent, and even more by SOIs performed, overlap entirely with work also performed by excluded employees (the rework and traveled work).
The NLRB found that excluded production and maintenance employees would largely have the same interests as FRTs and FRTIs in the context of collective bargaining. As a result, the petitioned-for unit’s distinct interests don’t outweigh the interests they share with excluded employees.

Special considerations of facility, industry, or employer precedent. The community-of-interest standard includes, where applicable, a consideration of guidelines established by the NLRB for appropriate unit configurations in specific industries. No industry- specific guidelines were applicable in this case.

Lessons for employers

This case presents a classic case study of how the NLRB’s positions shift when the presidency changes political parties. During President Barack Obama’s tenure, NLRB decisions were generally more favorable to unions. Microunits like the one the Boeing workers petitioned for in this case were mostly favored by the Obama Board, expedited election rules were put in place, and employers’ ability to challenge issues before a union election was limited. The pendulum has swung, and under President Donald Trump, a more traditional community-of-interest approach has resumed.

The bottom line is, employers should expect to see the NLRB continue to go back and forth on many matters depending on which political party the occupant of the White House belongs to. For now, it’s less likely that an integrated operation will be carved up into smaller groups when a union seeks to represent employees within your company.

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