July 13, 2020

Volume X, Number 195

July 13, 2020

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The NLRB Nixes Union Gerrymandering And Establishes A Three Step Test For Voting Unit Determinations

In the organizing context, the scope of a potential bargaining unit is everything-it determines which employees’ votes will count towards establishing a union’s putative majority in a secret ballot election, and determines the unit within which bargaining must take place if a union prevails in that election. Unsurprisingly, then, unit scope is one of the most hotly contested issues in election cases.

The National Labor Relations Board (NLRB) during the Obama administration ushered in a sweeping, union-friendly change in the law as it relates to unit determinations in a case called Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), where the Board essentially allowed unions to dictate unit scope unless an employer could show that the union selected unit was too narrow because there existed an overwhelming community of interests between the petitioned-for unit and excluded employees.

Specialty Healthcare runs contrary to Section 9(c)(5) of the National Labor Relations Act (Act), which prohibits the Board from giving controlling weight to the extent of a union’s organizing when making unit determinations. Accordingly, early on, the current Republican Board reversed Specialty Healthcare in PCC Structurals, Inc.,365 NLRB No. 160 (2017), and returned to the Agency’s traditional community of interest test. Under that standard, when a party, typically the employer, asserted that the petitioned for unit was inappropriate and that the smallest appropriate unit must include employees excluded from the petitioned for unit, the Board applied its traditional community of interest factors to determine whether the petitioned for employees shared a community of interests sufficiently distinct from excluded workers to constitute a separate voting/bargaining unit. Where the petitioned-for unit was found to have a sufficiently distinct set of interests, the unit was deemed appropriate and an election was held in that smaller, presumably pro-union unit. However, where the petitioned-for unit was found to not enjoy a distinct set of interests, it was deemed inappropriate, meaning that the union’s petition would be dismissed, absent the union’s ability to produce a sufficient showing of interest in the expanded unit and its willingness to proceed to an election in that larger appropriate unit.

On September 9, 2019, the Board issued its decision in The Boeing Company, 368 NLRB No. 67, further clarifying what it meant in PCC. The Boeing case arose out of a regional director’s pre-election unit determination allowing an election in a unit consisting of just two classifications working in isolated operating units and numbering roughly 200 technicians, even though the employer’s multi-departmental operations were functionally integrated and even though the 200 employees the Union sought to represent were integral to a larger group of employees numbering 2,700. Not surprisingly, the Union won the resulting election in this gerrymandered voting group. However, the Board reversed the RD’s unit determination and voided the union’s election victory, finding that the petitioned-for two classification unit did not share a community of interests that was distinct from the interests of the employer’s other employees who were excluded from the unit to be “appropriate” for the purposes of collective bargaining. In reaching this result, the Board clarified PCC and devised a three step model for future decision-makers to follow when making unit determinations:

First, the proposed unit must share an internal community of interests. A petitioned-for unit without an internal and shared community of interests is not appropriate for bargaining purposes and therefore cannot serve as the predicate for an election.

Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from the unit must be comparatively analyzed and weighed to determine whether the petitioned-for unit is sufficiently distinct from other employees to constitute a separate voting/bargaining unit. If those distinct interests do not outweigh the similarities that exist among the two groups, the petitioned-for unit is inappropriate and will not be sanctioned by the Act. After engaging in that analysis and weighing the shared and distinct interests among the petitioned-for and excluded employees, a decision-maker opting for the smaller petitioned-for unit must explain why the excluded employees have distinct interests for bargaining purposes. This explanation is required in order to avoid arbitrary lines of demarcation.

For the third and final step, consideration must be given to the considerable body of Board law addressing appropriate units in the particular industry involved.

Applying this trifurcated process to the case, the Board concluded the two classifications constituting the petitioned-for unit did NOT constitute an appropriate unit because the employees therein belonged to different departments, did not share supervision, performed different (albeit related) functions, and never interchanged from one classification to the other. Further, even if were to assume that the petitioned-for unit possessed a sufficient internal community of interests, the Board would nevertheless have found the petitioned-for unit inappropriate because the interests of the excluded employees were NOT meaningfully distinct from and did not outweigh the similarity of interests they had with the petitioned-for unit, citing the high degree of functional integration that existed between the two groups and the fact that included employees shared the same departments as excluded workers.


  1. Boeing shows that the Board said what it meant and meant what it said in PCCSpecialty Healthcare and the practice of giving considerable weight to the extent of a union’s organization is D-E-A-D, and such gerrymandered voting/bargaining units will be a thing of the past..

  2. Unit determinations will now be done on the basis of the trifurcated Boeing model requiring a careful and reasoned analysis and weighing of the similarities and differences that exist between petitioned-for units and those excluded from the unit. Where similarities exist and where they are not outweighed by the differences, narrow petitioned-for units will be found inappropriate.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IX, Number 254


About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees.

Mr. Bolesta also regularly counsels clients on all aspects of federal, state, and local equal employment opportunity and fair employment practices laws and regulations, and regularly advises clients on confidentiality, trade secrets, no solicitation and non-compete matters. Moreover, Mr. Bolesta represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. His experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

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James Hays, Legal Specialist, management of labor and employment law

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...