Late Friday evening, the NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the decision that permitted unions to organize “micro-units” of employees. In PCC Structurals, Inc., 365 NLRB No. 160, the Board returned to “the traditional community of interest standard” for evaluating the appropriateness of a petitioned-for bargaining unit.
In PCC, the 3-2 Republican majority chided Specialty Healthcare for claiming to “clarify” preexisting standards for determining appropriate bargaining units; instead, “the majority in Specialty Healthcare substantially changed the applicable standards.” The majority wrote, “Specialty Healthcare effectively makes the extent of union organizing ‘controlling,’ or at the very least gives far greater weight to that factor than statutory policy warrants, because under the Specialty Healthcare standard, the petitioned-for unit is deemed appropriate in all but rare cases.”
The majority returned to the pre-Specialty Healthcare test, requiring the Board “to undertake a more vigorous assessment of unit appropriateness, regardless of whether an ‘overwhelming’ community of interest exists between excluded employees and those in the petitioned-for unit.” The majority wrote that “the Act does not compel the Board to give extraordinary deference to the petitioned-for unit” but instead requires the Board to “tak[e] into consideration the interests of employees both within and outside the petitioned-for unit.”
In PCC, the Regional Director rejected the employer’s argument that the only appropriate unit was a wall-to-wall unit of 2,565 production and maintenance employees in its metal castings manufacturing facilities in Oregon, instead permitting a unit of 100 production employees to proceed to a vote. The production employees voted in favor of the union by a margin of 16 votes. After overruling Specialty Healthcare, the Board remanded the case to the Regional Director for further appropriate action, including reanalyzing the appropriateness of the petitioned-for unit as necessary.