Labor Law -- 2016

Nestle Dreyer's Ice Cream Co. v. National Labor Relations Board   (4th Circuit)

Overturning the NLRB's "overwhelming community of interest" test for bargaining units

On 1/13/2015 the NAM filed an amicus brief with the Fourth Circuit Court of Appeals in Nestle Dreyer's Ice Cream Co v. NLRB. We argued that the Court should reverse the Board’s decision that Dreyer’s technical refusal to bargain violates Section 8(a)(5) of the Act because by certifying the petitioned-for unit of maintenance employees, the Board erroneously: (1) failed to give proper consideration to the bargaining history that included a broader unit of maintenance and production employees; (2) made the extent of organization a controlling factor in the unit determination, which is in direct contravention of Section 9(c)(5) of the Act; (3) relied on the “overwhelming community of interest” test announced in Specialty Healthcare, which this Court explicitly rejected in Lundy Packing Co., 68 F.3d 1577 (4th Cir. 1995); and (4) ignored long-standing Board precedent that production and maintenance units are presumptively appropriate.

According to our brief, "To simply allow the instant certification of a maintenance-only unit to stand in contravention of Section 9(c)(5) of the Act, bargaining history, the Board’s long-standing recognition that production and maintenance units are presumptively appropriate, and this Court’s clear precedent in Lundy Packing Co., would be a disservice to employees, employers, orderly collective bargaining, and national labor policy."

Related Documents:
NAM brief  (January 13, 2015)


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