Employment Law Daily Separate bargaining unit of ‘riggers’ is legitimate; so is Specialty Healthcare
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Tuesday, August 15, 2017

Separate bargaining unit of ‘riggers’ is legitimate; so is Specialty Healthcare

By Ronald Miller, J.D.

An employer’s challenge to the appropriateness of a bargaining unit of “riggers,” based on its contention that other employees shared a community of interest, was rejected by the D.C. Circuit because a legitimate basis existed to certify these workers as a separate unit. Here, the appeals court rejected the employer’s contention that the Board used an improper framework to assess the appropriateness of a riggers-only bargaining unit. The court also rejected the employer’s contention that the Specialty Healthcare framework caused the Board to abdicate its statutory duty to decide the appropriateness of a proposed unit “in each case.” The appeals court was unconvinced by the employer’s assertion that the Board would necessarily deem appropriate any petitioned-for unit that consisted of employees sharing a job title (Rhino Northwest, LLC v. NLRB, August 11, 2017, Stinivasan, S.).

The employer employs personnel to help set up venues for concerts, festivals, and other events throughout the Pacific Northwest. This case arose when a union filed a petition seeking to represent a bargaining unit composed of “riggers” employed at the employer’s Fife, Washington facility. Riggers are responsible for “using motors to safely suspend objects overhead before events, and safely removing them with motors afterwards.” The employer disputed the appropriateness of the proposed unit. It asserted that any appropriate bargaining unit must include not just the riggers, but all employees involved in the assembly and disassembly, operation, and transport of equipment located at the Fife facility.

Shared community of interest. An NLRB regional director rejected the employer’s challenge, finding that the riggers formed a facially appropriate bargaining unit because they shared a community of interest and were “readily identifiable as a group based on their classification and function.” Further, the employees that the employer sought to add to the unit did not share an overwhelming community of interest with the riggers, the regional director found. The Board denied the employer’s request for review.

After a majority of riggers voted for union representation, the regional director certified the union as the riggers’ bargaining representative. In response, the employer refused to bargain, claiming it had no duty to deal with the representative of an improperly certified unit. The Board found the employer’s refusal to bargain violated the NLRA. The employer petitioned for review of the Board order, while the Board crossed-petitioned for enforcement.

Appropriateness of proposed unit. Under Board decisions, two considerations determine the prima facie appropriateness of a proposed unit. First, the employees must be “readily identifiable as a group” based on such factors as “job classifications, departments, functions, work locations, or skills.” Second, the petitioned-for employees must share a “community of interest.” Under the Board’s approach, more than one appropriate bargaining unit can be defined in any particular setting. As a result, an employer challenging a proposed unit must do more than show that an alternative unit would also be appropriate, or even more appropriate. When an employer seeks to challenge a prima facie appropriate unit as under-inclusive, the employer must demonstrate that the unit is “truly inappropriate.”

Overwhelming community of interest standard. The employer contended that the Board’s “overwhelming community of interest” standard articulated in Specialty Healthcare runs afoul of the NLRA. Specifically, it asserted that the Board imported the standard from an entirely different context breaking from the agency’s past practice without adequate explanation. However, the D.C. Circuit observed that the Board adopted the standard from its decision in Blue Man Vegas, LLC v. NLRB. The appeals court’s review confirmed that the Board in Specialty Healthcare simply took a fitting “opportunity to make clear” the exact language it would employ going forward, and that its “formulation was drawn from Board precedent.”

Statutory duty. Next, the employer asserted that the Specialty Healthcare framework caused the Board to abdicate its statutory duty to decide the appropriateness of a proposed unit “in each case.” However, the appeals court was unconvinced by the employer’s assertion that the Board would necessarily deem appropriate any petitioned-for unit that consisted of employees sharing a job title. Rather, it observed that both before and after Specialty Healthcare, the Board has rejected proposed units consisting of an entire class or category of employees.

Similarly, the court rejected the employer’s assertion that the Board’s “overwhelming community of interest” standard inappropriately gives dispositive weight to “the extent to which the employees have organized.” Rather, the Board applies the “overwhelming community of interest” standard only after the proposed unit has been shown to be prima facie appropriate.

Specialty Healthcare, applied. With regard to the application of the Specialty Healthcare framework in this case, the D.C. Circuit held that substantial evidence supported the Board’s determination that the employer’s riggers did not share an overwhelming community of interest with the company’s other employees since they performed a “unique function.” Prospect riggers must attend a three-day training course, they were paid a significantly higher wage rate than their fellow employees, they received larger gas reimbursements for certain events, and they took “direction from their own rigger supervisor.” Unlike other employees, riggers did not have responsibility for loading or unloading items, and they generally did not work during the shows.

Accordingly, the appeals court denied the employer’s petition for review and granted the Board’s cross-application for enforcement.

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