NLRB Tosses 'Overwhelming Community Of Interest' Standard And Returns To The 'Traditional Community Of Interest' Standard In Determining Appropriate Bargaining Units

Author:Ms Michelle Harkavy
Profession:Ford & Harrison LLP

Executive Summary: On December 15, 2017, the National Labor Relations Board (NLRB or Board) overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which required an "overwhelming community of interest" when determining the appropriateness of a bargaining unit, and returned to the "traditional community of interest" standard that the Board has applied throughout most of history. See PCC Structurals, Inc. and International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge W24, Case 19-RC-202188.

Specialty Healthcare & Rehabilitation Center of Mobile

In 2011 the NLRB issued its decision in Specialty Healthcare, one of the most controversial Board decisions to come out during the Obama administration. The Board changed the test used in determining whether a petitioned-for unit of employees was the most appropriate unit within an employer's workforce. Under Specialty Healthcare, if a union petitioned for an election among a group of employees and the employer objected to the appropriateness of the bargaining unit, the Board required the employer to prove that the excluded employees shared an "overwhelming" community of interest with the petitioned-for-group. This standard made it much easier for smaller groups of employees to become certified bargaining units (often referred to as "microunits").

PCC Structurals

In PCC Structurals, the company had a two-stage manufacturing process that involved creating casting for molds (front end) and inspecting and reworking the castings (back end). The union petitioned for a bargaining unit that consisted of welders who work in the back-end stage of the production process and one employee who worked in the front-end. The Regional Director found that the petitioned-for unit shared a community of interest among themselves under the traditional criteria and that the excluded workers did not share an "overwhelming community of interest" with the smaller unit of welders. The employer objected on the grounds that all production employees, including the petitioned-for group, worked similar hours, were paid on the same wage scale, received the same benefits, were subject to the same employee handbook and work rules, wore similar attire and protective gear, worked under the same safety requirements and participated in the same training regarding safety, harassment and other matters. The Regional Director rejected the employer's contention that the rest of the production...

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