The Law @ Work

NLRB Reverses Obama-Era Decision Regarding Scope of Bargaining Units

By Ralph F. Abbott

In a win for employers, The NLRB has overruled its 2011 Specialty Healthcare & Rehabilitation Center decision, making it more difficult for unions to cherry-pick small groups of employees in their organizing efforts.  In Specialty Healthcare, the NLRB had abandoned its historical “community of interest test” and adopted an “overwhelming community of interest” standard for determining an appropriate bargaining unit in representation cases.   That standard established a two-step analysis when determining the appropriateness of bargaining unit sought to be represented by a union and where the employer desired to expand the voting group by adding other groups of employees:

  1. The Board would first determine whether members in a petitioned for bargaining unit share a community of interest with other petitioned-for employees and are “clearly identifiable” as a group;
  2. Where the employer objected to the union’s petitioned-for unit and wanted to expand the voting group, the employer could only do so by showing that an “overwhelming community of interest” existed between the  employees in the group proposed by the union and those sought to be added by the employer.

Under this analysis, the NLRB rarely found a larger grouping appropriate when sought by an employer and led to the creation of “micro-bargaining units”.  Such micro-units were easier to organize by unions and led to situations where employers were placed at risk of having to bargain with several small units of employees in one workplace.

The NLRB recently revisited this standard in PCC Structurals, Inc., 365 NLRB No 160 (2017).   PCC Structurals was a manufacturing facility that employed over 2000 employees.  The Machinists Union sought to organize approximately 100 welders, a small percentage of the workforce, and filed a petition with the NLRB to conduct a representative election among only the welders. The welders worked closely with the other production workers, shared supervisors and shared many other terms and conditions of employment with the other production workers.  The NLRB Regional Director held that the other production workers did not share an “overwhelming community of interest” with the welders and rejected the employer’s argument that the excluded production employees should have been included in the proposed bargaining unit and allowed to vote.  The employer appealed the Regional Director’s decision to the full NLRB.

The NLRB disagreed with the decision of the Regional Director, reevaluated its holding in Specialty Healthcare, and abandoned its “overwhelming community of interest” analysis.  In doing so, the NLRB returned to its traditional “community of interest” standard for determining the appropriateness of a voting unit in union representation cases.  Using its historical community of interest test, the Board will once again assess whether the group of employees named in the Union’s Representation Petition shares interests that are sufficiently separate and distinct from those in the remainder of the workforce to constitute an appropriate unit for bargaining considering whether the employees: are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work; are functionally integrated with the employer’s other employees; have frequent contact and exchanges with other employees; have distinct items and conditions of employment; and are separately supervised.

In the future, the Board’s PCC Structural decision will require unions to organize employees on a much broader basis than the small micro-units made possible by Specialty Healthcare’s “overwhelming community of interest” standard.  Unions should be unable to cherry-pick smaller groups of employees.  It is bad news for union organizers and good news for employers.

Note to non-acute care healthcare clients:

In PCC Structurals, the Board explicitly returned to its Park Manor Care Center, 305 NLRB 872 (1991) standard for determining appropriate bargaining units in non-acute care healthcare facilities.  Under that standard, in addition to its traditional “community of interest” standard, the Board also considers the unique structure and organization of the work performed in such facilities. In so doing, the Board will also attempt to strike a balance between too large and too small bargaining units. Under Park Manor, the Board almost always combined CNAs and other service and maintenance employees into a single bargaining unit.

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