FedEx recently asked the Eight Circuit Court of Appeals to reconsider a ruling that incorporated a heightened standard for employers challenging bargaining unit status. An appropriate bargaining unit is "a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining." Bargaining units will meet and confer with the employer to reach a collective bargaining agreement that will apply to all employees in that unit. Section 9(b) of the National Labor Relations Act ("NLRA") bestows the task of determining the appropriateness of a bargaining unit to the National Labor Relations Board ("NLRB" or "the Board"), but the Board's decision can be appealed to federal district court.
FedEx's request comes years after a major decision was made by the NLRB that broke with prior precedent when determining the appropriateness of bargaining units. In Specialty Healthcare, 357 NLRB No. 73 (2011), the Board adopted a new standard that gave substantial leeway to employees in determining their bargaining units. The new standard held clearly identifiable groups of employees would be assumed to be appropriate, and that the employer has the obligation to show there is an overwhelming interest in grouping the employees in a different way. The employer, therefore, must meet a heightened standard to alter a bargaining unit.
FedEx claims the Circuit's panel incorrectly affirmed the Board's 2011 decision by ignoring well-established precedent. Simply stated, FedEx has asked, "Did the board fundamentally change the 50-year standard by which it decides such cases via a decision justified only by misrepresented precedent?" The Board countered FedEx's assertion that it changed precedent by saying it merely clarified the existing precedent. That did not satisfy FedEx. FedEx's motion for hearing en-banc seeks to challenge the panel's decision that held "the framework established by the board in its Specialty Healthcare ruling is consistent with the NLRA and other statutes." If its motion is denied, FedEx will be forced to bargain with two bargaining units in North Carolina and Pennsylvania.
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