Today, the National Labor Relations Board issued a decision in American Steel Construction, Inc., in which the Board modified the test used to determine whether additional employees must be included in a petitioned-for unit in order to render it an appropriate bargaining unit. The decision returns the Board to its prior test governing such determinations, as set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), overruling PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019).  

In the decision, the Board reaffirmed its long-standing principle that employees in the petitioned-for unit must be “readily identifiable as a group” and share a “community of interest.” However, where a party argues that a proposed unit meeting these criteria must include additional employees, the Board reaffirmed that the burden is on that party to show that the excluded employees share an “overwhelming community of interest” to mandate their inclusion in the bargaining unit. 

“The Board’s task in assessing the appropriateness of bargaining units is to ensure that workers enjoy—in the words of the National Labor Relations Act— ‘full freedom of association,’” said Chairman Lauren McFerran. “Returning to the Specialty Healthcare standard is consistent with this principle, ensuring that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.”

The decision follows the Board’s Notice and Invitation to File Briefs asking parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit. 

Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.

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