NLRB General Counsel’s Memorandum Revises Bargaining Unit Determination Standards


On December 22, 2017, the Office of the General Counsel for the National Labor Relations Board issued a Memorandum to all Regional Directors reinstating a decades-old standard for bargaining unit determinations.

As discussed in our December 18, 2017 E-lert, in PCC Structurals, Inc., the Board abandoned the “overwhelming community of interest” standard for determining appropriate voting units in NLRB elections that had been adopted in Specialty Healthcare under the Obama administration. Instead, the Board reinstated the traditional “community of interest” standard, “which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an ‘overwhelming’ community of interests.”

The GC Memorandum provides avenues for employers to have the Board “revisit” the unit determinations in any “currently active cases.” It also certainly sends the message to both Regional Directors and practitioners before the Board that hearings on appropriate units will be expanded, rather than “rubber stamping” the voting units requested by unions, without the employer having a meaningful opportunity to present evidence.

Of note, this Memorandum does not undo the controversial “quickie election” procedures established by the Obama Board, which arguably was intended to facilitate unionization by speeding up the elections process, but it may be a constructive first step.