In a stunning development, the National Labor Relations Board has overruled Specialty Healthcare, the so-called “micro-unit” decision and replaced the “overwhelming community-of-interest” standard adopted there with the traditional “community-of-interest” standard for determining an appropriate bargaining unit in union representation cases. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017).
Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, and the employer took the position that the smallest appropriate unit had to include employees excluded from the proposed unit, the Board would not find the petitioned-for unit inappropriate unless the employer proved that the excluded employees shared an “overwhelming” community of interest with the petitioned-for group. That standard itself became overwhelming for employers, who almost never were successful in convincing the Board to add excluded employees to the petitioned-for unit. Under the simple community-of-interest standard, employers almost assuredly will prevail more often.
The Board stated:
Having reviewed the Specialty Healthcare decision in light of the Act’s policies and the Board’s subsequent applications of the “overwhelming community of interest” standard, we conclude that the standard adopted in Specialty Healthcare is fundamentally flawed. We find there are sound policy reasons for returning to the traditional community-of-interest standard that the Board has applied throughout most of its history, which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit— without regard to whether these groups share an “overwhelming” community of interests.
