In PCC Structurals, Inc., 365 NLRB No. 160, the National Labor Relations Board (“NLRB”) clarified the correct standard for determining whether a proposed bargaining unit constitutes an appropriate unit for bargaining when the employer contends that the smallest appropriate unit must include additional employees. The NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 934 (2011) (Specialty Healthcare) and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.
Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest among themselves and the employer took the position that the smallest appropriate unit had to include employees excluded from the proposed unit, the NLRB 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. In PCC Structurals, the NLRB abandoned the “overwhelming” community-of-interest standard and reverted to its previous test, which was simply whether the petitioned-for unit shared a community of interest sufficiently distinct from the interests of excluded employees to warrant a finding that the proposed group constitutes a separate appropriate unit.
The PCC Structurals decision will likely make it more difficult for unions to pursue organizing efforts by using small units.