The NLRB's policies ebb and flow with each change of occupancy at the White House. One important issue has to do with determining an appropriate unit for collective bargaining when a union petitions for an NLRB election.

In Specialty Healthcare, 357 NLRB 934 (2011), the Board announced a major break from the past, one which allows relatively small groups of employees to be declared an appropriate unit even though a larger group might be even more appropriate.

Here's how the Board put the new approach:

"[W]hen employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit."

Unions rejoiced. Employers moaned.

In PCC Structurals, Inc., 365 NLRB No. 160 (2017), the Board rejected the Specialty Healthcare approach, and returned to the previous standard for determining an appropriate unit – an approach that typically favored wall-to-wall units rather than smaller departmental units.

Now the Board is clearly on the path toward restoring the Specialty Healthcare approach or something quite similar. On December 7 in American Steel Construction 371 NLRB No. 41 (2021) [PDF] the NLRB invited the filing of briefs (due January 21, 2022) in order to afford the parties and interested amici the opportunity to address the following questions:

1. Should the Board adhere to the standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019)?

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?

It’s really only a matter of time before the Board returns to Specialty Healthcare or something quite similar.