United States: Circuit Court Of Appeals Upholds The NLRB's New "Overwhelming Community Of Interest" Bargaining Unit Test

The U.S. Court of Appeals for the Sixth Circuit, in a recent decision, approved the National Labor Relations Board's ("NLRB") application of its new "overwhelming community of interest test" in bargaining unit determination cases. The case, Specialty Healthcare and Rehab. Ctr. of Mobile, 357 NLRB No. 83 (2011), involved the question of whether a union could single out certified nurse assistants for representation at a long-term care facility and no longer apply the Board's bargaining unit determination standards for such facilities as provided for in its previous decision in Park Manor, 305 NLRB No. 135 (1991).

The Court of Appeals, in Specialty Healthcare, rejected all of the employer's challenges to the Board's decision and found that not only did the Board have considerable discretion under the National Labor Relations Act ("NLRA") in determining the appropriateness of voting units, but also that the Board, in this case, did not substantially change prior law in the unit determination area. The Court of Appeals also held that the Board's decision in Specialty Healthcare did not violate Section 9(c)(5) of the NLRA, which prohibits the approval of bargaining units on an extent of organizing basis. The court held that while the wording in Section 9(c)(5) is ambiguous, the Board did provide a rationale for its unit determination finding and did not simply defer to the unit being sought by the union. The court also rejected the employer's arguments that the Board should have engaged in rulemaking before making this change in its voting unit determination standards.

The Specialty Healthcare decision and its affirmance by the Sixth Circuit, unless or until the Supreme Court or other circuit courts hold differently, establishes a new "overwhelming community of interest test" to be used by the Board and its Regional Directors in voting unit and bargaining unit cases. Previously, the Board had applied its traditional "community of interest test" in virtually all unit determinations cases and only utilized the "overwhelming community of interest test" in accretion cases wherein small groups of unrepresented employees could be combined with represented employees without a secret ballot election being held. This standard will require an employer that attempts to add job classifications or positions to a unit being petitioned for by a union to establish that such additional employee complement has an "overwhelming community of interest" with the petitioned-for employees. This will be an exceedingly difficult standard to meet, and, as noted below, employers to date have been largely unsuccessful in meeting this standard.

The NLRB and its Regional Directors have applied the new "overwhelming community of interest test," in one fashion or another, in approximately 90 cases to date. In virtually all of these decisions, the employer has not been successful in increasing the size of the petitioned-for unit due to the application of this new test. A sampling of these decisions include the following:

DTG Operations, Inc., 357 NLRB No. 175 (2011). The Board found appropriate a unit of 31 rental service agents and overturned a Regional Director decision that had added additional employee positions to the petitioned-for unit. The Board found that there was no overwhelming community of interest for the additional employee positions and relied on evidence that the petitioned-for employees worked separately from other employees and performed distinct sales tasks with qualifications, expectations, and consequences for failure to meet those expectations that were not required of other employees.

Guide Dogs for the Blind, Inc., 359 NLRB No. 151 (2013). The Board affirmed the Regional Director's finding that a unit consisting of canine welfare technicians and instructors was appropriate and concluding that the employer had not met its burden of demonstrating that other "dog handling" employees shared an overwhelming community of interest with the petitioned-for unit.

Henkel Corp., Reg. 32 No. 32-RC-108535 (Aug. 8, 2013). The Regional Director found that the petitioned-for unit including all paste and film employees at a facility was appropriate and rejected the employer's argument that an appropriate unit should also include warehouse operators, maintenance mechanics, lab technicians, and planners.

Copper River of Boiling Springs, LLC, Reg. 10 No. 10-RC-098046 (Mar. 7, 2013). The Regional Director found that an appropriate unit consisted of servers, bartenders, and hostesses and declined the employer's claim that cooks and dishwashers should be included in the appropriate unit. According to the Regional Director, the cooks and dishwashers had different functions and job skills, rarely interacted or interchanged jobs with other employees, performed work in a separate area, had different supervisors, and were not subject to the tip-credit scheme. Similar terms and conditions of employment, such as facts that established that all employees wore similar uniforms, had the same insurance options, took similar trainings, followed the same handbooks, and used similar work schedules, were insufficient to create an overwhelming community of interest.

Corliss Resources, Reg. 19 No. 19-RC-080317 (June 12, 2012) The Regional Director found that an appropriate unit was composed of 29 dump truck drivers and rejected the employer's claim that all 74 truck drivers, including concrete mixer drivers, should constitute a unit. The Regional Director reasoned that while all drivers shared the same skills, training, and terms and conditions of employment, there was no overwhelming community of interest because the departmental organization, job functions, and supervision of the dump truck drivers were different from that of the concrete mixer drivers, and the two job types had little contact or interchange.

Bergdorf Goodman, Reg. 2 No. 02-RC-076954 (May 4, 2012) The Regional Director found that all women's shoes associates in the 2nd Floor Designer Shoes Department constituted an appropriate unit, despite the employer's claim that the appropriate unit should comprise all store employees or at least all selling associates at the store.

The NLRB's 2011 decision in Specialty Healthcare has received substantial attention since it issued, and many analysts have described it as one of the most important precedent-changing decisions ever to be issued by the Board. There also have been predictions that this decision will permit unions to gain entry into non-union businesses through the successful organizing of various small or "micro" bargaining units. While the Specialty Healthcare decision certainly does open the door for small or "micro" bargaining units, perhaps more importantly, especially for large employers, it opens the door for unions to obtain rulings from the NLRB that significant segments of an employer's workforce can be "carved out," to form a bargaining unit on an extent of organizing basis, and thereby result in the fragmentation of segments of an employer's operations. Indeed, partial unionization of otherwise integrated departments or operations of an employer can not only create labor disharmony but also lead to the potential for work stoppages, protracted collective bargaining, and interference in an employer's ability to expeditiously change, on a plant-wide or department-wide basis, operational policies and procedures.

Employers that have union-free workforces, and those employers that have partially unionized workforces, should pay particular attention to the Board's new "overwhelming community of interest test" and be prepared, in any contested voting unit case, to develop very complete and thorough records in Board unit determination hearings of the integration of their workforce with respect to employee positions it desires to add to the petitioned-for unit. Employers also should, to the extent possible, establish commonality with respect to terms and conditions of employment of its employees and utilize, whenever possible, cross-training and transfer initiatives to be able to establish that the various positions that make up its workforce have an overwhelming community of interest with virtually no deviation, from one position to another, with respect to terms and conditions of employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

James S. Urban
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions