Employment Law Report
NLRB’s Activity Surrounding Petitioned-For Bargaining Units Signals Implementation of President Biden’s Agenda
By: Matthew L. Bunnell
As we have previously addressed in Wyatt’s Labor and Employment blog, there are significant changes taking place at the National Labor Relations Board (the “Board”). Thus far, these actions are largely due to Jennifer A. Abruzzo, the Board’s General Counsel. Now, President Biden’s recent appointees to the Board, David Prouty and Gwynn Wilcox, will have their turn to advance the President’s pro-labor policies in light of the Board’s invitation last month for public input on whether to reconsider the standard for evaluating the appropriateness of a petitioned-for bargaining unit.
In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the Board overruled its 1991 decision in Park Manor Care Center, 305 NLRB 872 (1991) and introduced sweeping changes to unit determinations after finding that a group of Certified Nursing Assistants employed at a nursing home could comprise an appropriate bargaining unit without including all other nonprofessional employees. In so finding, the Board articulated a new standard (even though they opined that it was actually not new) for deciding cases where an employer asserts that the smallest appropriate unit should be larger than the one petitioned—a bargaining unit is appropriate if the petitioned for unit is readily identifiable as a group and shares a community of interest. For all intents and purposes, this rule allows unions to establish the scope of the bargaining unit because (1) the community of interest test gives presumptive weight to the petitioned-for unit and (2) employers bear the burden to rebut the presumption by proving that an “overwhelming” community of interest exists between the selected unit and the excluded employees.
Following the 2011 seminal decision in Specialty Healthcare, employers encountered an influx of multiple bargaining units, sometimes called micro-units. This practice was largely eradicated after the Board’s decision in PCC Structurals, Inc., 365 NLRB 160 (2017). This 3-2 decision reversed the “overwhelming” community of interest test and reinstated the traditional community of interest test, which considerers factors such as bargaining history, common supervision, employee interchangeability, employee skill, functional integration, wages and benefits, and working conditions to determine whether a proposed unit of workers shares a community of interest. Further, the majority stated that, in weighing the “shared and distinct interests of petitioned-for and excluded employees . . . the Board must determine whether excluded employees have meaningfully distinct interest in the context of collective bargaining that outweigh similarities with unit members.” Id.
Although the traditional community of interest test was recently clarified in The Boeing Co., 368 NLRB 67 (2019), the Board’s new political majority has determined that it was time to again address the proper scope of a bargaining unit. In American Steel Construction Inc., 371 NLRB 41 (2021), the Board outlined the shift in standards and invited the parties, along with other amici, to file briefs regarding two questions: “(1) Should the Board adhere to the standard in PCC Structurals, Inc., 365 NLRB 160 (2017), as revised in The Boeing Co., 368 NLRB 67 (2019)?” and (2) “If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?”
Based on the current composition of the Board, it seems likely that the standard for determining the appropriateness of a petition for bargaining unit will change. Although it is difficult at this stage to predict whether the Board will return to the standard established in Specialty Healthcare or develop a new test, one thing appears to be clear—the forthcoming standard is likely to favor narrow bargaining units and advance the President’s pro-labor policies. As such, employers should expect to see a return to “micro-units” and the Board approving the same.
Be sure and revisit the Wyatt Labor and Employment blog page for further developments and updates related to the NLRB’s pronouncements, as well as other employment topics.
 The United States Senate voted to confirm former union attorneys Gwynne Wilcox by a vote of 52-47 and David Prouty by a vote of 53-46 on July 28, 2021.
 In Park Manor, the Board adopted a special approach for bargaining unit determinations specific to nursing homes, rehabilitation centers, and other non-acute health care facilities based on an administrative rulemaking record from the late 1980s.
 The deadline to file interested amicus briefs is January 21, 2022.