Specialty Healthcare returns: “Overwhelming community of interest” once again

The NLRB has returned to its prior “overwhelming community of interest” test, 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). American Steel Construction, Inc., 372 NLRB No. 23 (12/14/2022) [PDF].

Where a party argues that a proposed bargaining unit must be expanded to include additional employees, the Board will place the burden 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 majority opinion says this policy "better reflects traditional Board precedent, better achieves consistency with Supreme Court precedent, and better promotes the policies of the Act."

Two dissenting Members say "our colleagues advance no valid justification for taking this step."