Editors Note: This is the latest installment in the Labor & Employment Report’s regular feature “Specialty Healthcare Watch.”   In Speciality Healthcare, the NLRB redefined the test for what constitutes an appropriate bargaining unit.   The Labor & Employment Report is analyzing post-Speciality Healthcare cases to give employers insights on how to apply that holding.   For more information on this case and feature, click here.

The next case applying Speciality Healthcare is Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163 (2011).   The employer operates a shipyard where it constructs nuclear-powered submarines and aircraft for the Navy.  The Union seeks a bargaining unit comprised of four classifications of employees: 140 Radiological Control Techs (RCTs), 3 Calibration Techs, 20 Laboratory Techs,  and 60 RCT trainees.    On the other hand, the employer wanted a unit comprised of all technical employees — numbering approximately 2400.   This is a classic example of a “wall to wall” unit versus a very small slice of the workforce.

The Board goes into painstaking detail to review what RCTS do — suffice to say they basically track radiation levels and ensure that individual employee radiation exposure remains within safe limits.  They set-up certain control areas to restrict access near nuclear reactors, work sites, etc., and they maintain checkpoints for other employees entering these areas.   They have a comprehensive education requirement, including an orientation at the shipyard, 22 weeks of training with the Navy, 5 more weeks of training back at the shipyard, and then a full-day oral examination.  They also must be “requalified” every 30 months and obtain a confidential security clearance.

As for the other proposed employees, the lab techs work with the RCTS in collecting materials, help calibrate dosimetry equipment used by the RCTs, and screen contaminated materials.  The Calibration Techs maintain and calibrate the equipment used by the RCTs and interact regularly with the RCTs.

Applying Speciality Healthcare, the Board stated that there was no dispute that the petitioned for employees shared a community of interest under the Board’s traditional test.  Thus, the only question was whether the employer’s proposed unit of “all technical employees” share an “overwhelming community of interest” in that “there is no legitimate basis upon which to exclude the employees from the larger unit because the traditional community of interest factors overlap almost completely.”

If you recall my analysis from Odwalla, the Board found that there was no legitimate basis to exclude the employees because, after going through all of the traditional community-of-interest test, there was really no difference between the excluded and included employees.   So the question in Northrop Grumman was whether the traditional community-of-interest test excludes the other technical employees?

Here, the Board said “yes.”   In particular, the Board focused on the job functions of the RCTs versus other technical employees, finding that:

“[T]he RCTs’ job function is to ensure workplace safety and control radioactive contamination at the shipyard, a task distinct from the production oriented jobs of technical employees outside of E85 RADCON. RCTs are therefore not functionally integrated into the production work flow of the shipyard, but instead have an independent oversight role.”

Beyond the job function, the Board found that “work contacts” between RCTs and other employees “are brief” and that RCTs “receive extensive and highly-specialized radiological training.”

Thus, because the traditional community-of-interest factors showed these differences, the Board found that the employer could not meet the overwhelming community-of-interest test and that the smaller unit was appropriate.

An interesting wrinkle comes after the Specialty Healthcare analysis.  The Board stated in Specialty Healthcare that certain industries have “presumptions” and “occupation rules” for bargaining units and that the Board would continue to respect those special rules.  For technical employees, the Board had previously adopted a rule that “when technical employees work in similar jobs and have similar working conditions and benefits, the only appropriate unit for a group of technicals must include all such employees similarly employed.”  TRW Carr Divison, 266 NLRB 326, 326 (1983).  But even in that context, a subset of technical employees share a community of interest when they are “sufficiently distinct” from other technical employees.  Applying that different standard, the Board still reached the same conclusion — that the petitioned unit was appropriate because the “RCTs are alone tasked with independent safety oversight” and thus “sufficiently distinct” from other technicals.

The takeaway for employers:

(1) Just as in Odwalla, in a Specialty Healthcare analysis, you must frame your argument around the traditional community of interest test and why those factors do not exclude the larger unit  Here, the case pretty much came down to job function and there was just enough of a difference between the job functions of the RCTS and all technicals that the smaller unit was valid.

(2) Always look for special bargaining unit rules in a given industry.   While that argument didn’t prevail here,  it is important to remember that Specialty Healthcare did not overrule special rules that might apply in a particular industry and that the Board will consider such rules.

In Part Two of this analysis, I will review Brian Hayes highly persuasive dissent in this case.