The new National Labor Relations Board (NLRB) delivered a win for employers late last year when they reinstated the traditional “community of interest” standard, overruling the Obama-era Specialty Healthcare decision that raised the bar on employers by requiring them to show that other workers had an “overwhelming community of interest” with those in a petitioned-for bargaining unit.
Generally speaking, employers (and historically the NLRB) favor larger wall-to-wall units during a union representation election while unions favor smaller “micro-units” that they can selectively target based on union support – making organizing easier for the union. In reinstating the traditional community of interest test, the Board in PCC Structurals remanded the case back to the regional director who had initially determined that the employer was unable to show that a unit of “all production and maintenance employees” shared an overwhelming community of interest with a smaller unit of welders favored by the union.
On remand, the regional director upheld the micro-unit of welders. Despite the less burdensome standard, the regional director found that the employer still could not show that all production and maintenance employees shared a community of interest with the welders, in part because the welders required distinct certifications depending on the type of work they performed. The difference in the scope of the unit in this case was drastic. The micro-unit of welders, who will not have to revote after voting in the union as their bargaining representative prior to the Board decision, was just over 100, while the unit of all production and maintenance employees sought by the employer was roughly 2,400.
The decision is a reminder that despite opinions from the new NLRB that have left employers fueled with optimism, challenges still remain in many areas, including the contentious battle over the scope of a unit in a representation election. Notwithstanding the traditional community of interest standard, unions will continue to seek out the certification of micro-units in an attempt to gain a foothold in workplaces.