Sufficiently Distinct or Overwhelmingly Similar? – NLRB Welcomes Briefs on Appropriate Bargaining Unit Standard

For the majority of the National Labor Relations Board’s (the “Board”) history, the Board has applied the traditional community of interest standard when faced with questions of bargaining unit appropriateness. Thus, an employer would try to show that the excluded employees are functionally integrated with the employer’s other employees; have frequent contact with other employees; interchange with other employees; have the same terms and conditions of employment; and share the same supervisors as the target employees. Under this standard, the Board would accept the union’s choice of unit only if the excluded employees were sufficiently distinct from those in the petitioned-for unit.

During the Obama administration, the Board departed from the traditional standard (much to the chagrin of Tevye and employers nationwide) and adopted the overwhelming community of interest standard. Under that standard, an employer needed to show that the excluded employees share an overwhelming community of interest with the employees in the petitioned-for unit, such that there is “no legitimate basis” to exclude the employees from the petitioned-unit because the community of interests factors “overlap almost completely.” As a result, the union’s choice of unit was generally controlling in all but narrow and highly unusual circumstances. However, the overwhelming community of interest standard was quickly shelved by the Board, and it returned to the traditional standard, during the Trump administration in 2017.

The pendulum may be about to swing back again. On December 7, 2021, the Board invited briefing in American Steel Construction, Inc., 371 NLRB No. 41 (2021), asking the parties (and the public) whether it should continue to apply the traditional community of interest standard or dust off (and return to) the overwhelming community of interest standard. What standard the Board ultimately adopts is likely to have a fairly significant impact on the organized labor movement moving forward, as the scope of a potential bargaining unit can determine the outcome of a given election. And although the time for filing amicus briefs has passed, an employer concerned about union organizing should analyze how it organizes its employees after the new standard is announced to determine if practical changes can be made that align with its operational goals but also reduce the likelihood of a union gaining a foothold in its workforce through pursuing a smaller unit.