PCC Structurals, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 160 (N.L.R.B. 2017)

365 NLRB No. 160
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
PCC Structurals, Inc. and International Association
of Machinists & Aerospace Workers, AFL–CIO,
District Lodge W24. Case 19–RC–202188
December 15, 2017
ORDER GRANTING REVIEW AND REMANDING
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE,
MCFERRAN, KAPLAN, AND EMANUEL
The Employer requests review of the Regional Direc-
tor’s Decision and Direction of Election, in which the
Regional Director found that a petitioned-for unit of ap-
proximately 100 full-time and regular part-time rework
welders and rework specialists employed by the Employ-
er at its facilities in Portland, Clackamas, and Milwaukie,
Oregon, comprise a unit appropriate for collective bar-
gaining.1 The Employer contends that the smallest ap-
propriate unit is a wall-to-wall unit of 2565 production
and maintenance employees in approximately 120 job
classifications. For the reasons stated below, we grant
review, clarify the applicable standard, and remand this
case to the Regional Director for further appropriate ac-
tion consistent with this Order.2
Today, we clarify the correct standard for determining
whether a proposed bargaining unit constitutes an appro-
priate unit for collective bargaining when the employer
contends that the smallest appropriate unit must include
additional employees. In so doing, and for the reasons
explained below, we overrule the Board’s decision in
Specialty Healthcare & Rehabilitation Center of Mobile,
357 NLRB 934 (2011) (Specialty Healthcare), enfd. sub
nom. Kindred Nursing Centers East, LLC v. NLRB, 727
F.3d 552 (6th Cir. 2013), and we reinstate the traditional
community-of interest standard as articulated in, e.g.,
United Operations, Inc., 338 NLRB 123 (2002).3

1 The Regional Director determined that an additional employee
designated in the petition as a rework specialist/crucible repair employ-
ee may vote subject to challenge. Discussion of the Regional Direc-
tor’s analysis and findings herein relates to the petitioned-for rework
welders and rework specialists.
The election was held on September 22, 2017. The tally was 54–38
in favor of the Petitioner, with two challenged ballots, a number insuf-
ficient to affect the result.
2 We do not rely on the Regional Director’s citations to Guide Dogs
for the Blind, Inc., 359 NLRB 1412 (2013), a decision that included
two members whose appointments were subsequently found invalid by
the Supreme Court. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
3 Additionally, for the reasons stated by former Member Hayes in
his dissenting opinion in Specialty Healthcare, we reinstate the stand-
ard established in Park Manor Care Center, 305 NLRB 872 (1991), for
determining appropriate bargaining units in nonacute healthcare facili-
Background
The Employer manufactures steel, superalloy, and tita-
nium castings for use in jet aircraft engines, airframes,
industrial gas turbine engines, medical prosthetic devic-
es, and other industry markets. The Employer’s opera-
tion in the Portland, Oregon area consists of three “profit
and loss centers” located within approximately a 5-mile
radius of one another. Petitioner and Employer agree
that these three centers comprise the entire Portland op-
eration. As described by the Regional Director, the
manufacturing process is the same at all three facilities.
That process involves two stages. The first or “front
end” stage involves creation of the casting. In this stage,
production employees create a wax mold of the custom-
er’s product, “invest” the mold by alternately dipping it
into a slurry and into sand until a hard ceramic shell is
formed around the wax, and then melt the wax away to
leave the empty ceramic shell, into which liquid metal is
poured to create the casting. The second stage (some-
times referred to as “back end”) involves inspecting and
reworking the casting. The employees in the petitioned-
for unit are welders who work in the “back end” stage of
the production process, primarily repairing defects in the
metal castings. The exception is the one rework special-
ist/crucible repair employee, who appears to work in the
“front end” or casting portion of the manufacturing pro-
cess.
To determine the appropriateness of the petitioned-for
unit, the Regional Director applied the standard set forth
in Specialty Healthcare. As a Board majority explained
its standard in that decision, when a union seeks to repre-
sent a unit of employees “who are readily identifiable as
a group (based on job classifications, departments, func-
tions, 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” for bargaining. Specialty
Healthcare, 357 NLRB at 945–946. If the petitioned-for
unit is deemed appropriate, the burden shifts to the pro-
ponent of a larger unit (typically the employer) to
demonstrate that the additional employees the proponent
seeks to include “share ‘an overwhelming community of
interest’” with the petitioned-for employees, “such that
there ‘is no legitimate basis upon which to exclude cer-
tain employees from’” the petitioned-for unit because the
traditional community-of-interest factors “‘overlap al-
most completely.’” Id. at 944 (quoting Blue Man Vegas,
LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir. 2008)).

ties. See Specialty Healthcare, 357 NLRB at 948–950 (Member
Hayes, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Applying the foregoing standard, the Regional Direc-
tor first concluded that the employees in the petitioned-
for unit are readily identifiable as a group on the basis
that the employees in the proposed unit are welders in
related job classifications who repair manufacturing de-
fects in metal castings.
The Regional Director further concluded that the peti-
tioned-for rework welders and rework specialists share a
community of interest amongst themselves under the
traditional criteria. In this regard, however, he found that
two factors weigh against a community-of-interest find-
ing. First, the unit sought by the Petitioner does not con-
form to an administrative grouping or department within
the Employer’s organizational structure, and the employ-
ees in the proposed unit are scattered throughout numer-
ous departments in the Portland operation. Second, the
petitioned-for employees do not share common supervi-
sion. Rather, employees with a variety of job titles report
to each production supervisor, and no production super-
visor oversees only the petitioned-for employees. Thus,
rework welders and rework specialists testified that their
immediate supervisors “also supervise rework grinders,
visual dimensional inspectors, x-ray shooters and read-
ers, and florescent penetrant inspectors.”
Notwithstanding these two factors adverse to the pro-
posed unit, the Regional Director found that a number of
factors favor a finding that the petitioned-for employees
share a community of interest with one another, includ-
ing shared skills, training, certification requirements, and
in-house training requirements. He also found that the
petitioned-for rework welders and rework specialists are
functionally integrated amongst themselves because they
all perform the same work: repairing defects in metal
castings.4 As for employee contact, the Regional Direc-
tor found that rework welders and rework specialists
work either in open-air chambers or in booths, and the
booths are adjacent to one another.5 While evidence of
temporary interchange with employees outside the pro-
posed unit was inconclusive, and such interchange ap-
pears minimal, the Regional Director found permanent
interchange within the petitioned-for unit in that all re-
work specialists were previously rework welders.6 The

4 Rework specialists perform additional tasks as well: training re-
work welders and providing other project support. Rework specialists
outrank rework welders. Applicants for rework specialist positions are
required to be step 6 rework welders—the highest rework-welder
step—with a minimum of 5 years’ experience at step 6.
5 The Regional Director made no findings regarding the location of
the open-air chambers or whether they are adjacent to other open-air
chambers or to the welding booths.
6 Approximately 55 of the petitioned-for welders previously held
other positions with the Employer. However, it is rare for welders, who
Regional Director also based his community-of-interest
finding on evidence that the petitioned-for employees
share many of the same terms and conditions of em-
ployment, even though all production employees share
the same terms and conditions. Thus, all production em-
ployees, including the petitioned-for employees, work
similar hours, are paid on the same wage scale, receive
the same benefits, are subject to the same employee
handbook and work rules, wear similar attire and protec-
tive gear (steel-toed shoes, safety glasses and hearing
protection), work under the same safety requirements,
and participate in ongoing training regarding harassment,
safety, and other matters.
Turning to the second step of the Specialty Healthcare
analysis, the Regional Director rejected the Employer’s
contention that the rest of the production and mainte-
nance employees share an “overwhelming community of
interest” with the petitioned-for employees and must
therefore be included in the unit. He acknowledged that
functional integration weighs in favor of finding an
overwhelming community of interest between the peti-
tioned-for employees and the rest of the production em-
ployees: rework welders and rework specialists function
as part of an integrated production process, repairing
defects identified by other employees and working in
“rework teams” that include employees in other job clas-
sifications. He also recognized that the petitioned-for
unit does not track departmental lines and the employees
therein are not separately supervised. But he concluded
that the Employer did not carry its burden to establish
that the smallest appropriate unit is a wall-to-wall pro-
duction and maintenance unit. In this regard, he deter-
mined that shared terms and conditions of employment
constituted a neutral factor: on one hand, all of the Em-
ployer’s production and maintenance employees are sub-
ject to the same policies and rules, work similar hours,
are paid under the same wage structure, receive the same
benefits, and wear the same attire and protective equip-
ment; on the other hand, the welders are paid at the high
end of the pay scale, and they use distinctive welding and
metalwork equipment. Further, the Regional Director
found that the welders’ distinct qualifications and train-
ing, their performance of distinct job duties, their limited
contact with other employees, and the lack of significant
interchange across proposed-unit lines all weigh against
a finding that the petitioned-for employees share an
overwhelming community of interest with the remainder
of the production and maintenance employees.

are paid near the high end of the wage scale, to move into nonwelding
positions other than managerial positions.
PCC STRUCTURALS, INC. 3
In its request for review, the Employer contends that
Specialty Healthcare was wrongly decided. Alternative-
ly, the Employer argues that even under the Specialty
Healthcare standard, the petitioned-for employees are
not a readily identifiable group, and they share an over-
whelming community of interest with the remainder of
the production and maintenance employees. In arguing
that the Board should overrule Specialty Healthcare, the
Employer contends that in Specialty Healthcare, the
Board effectively abdicated its duty to determine an ap-
propriate unit on a case-by-case basis as required by Sec-
tion 9(b) of the Act; that it gave controlling weight to the
extent of union organizing in making unit determina-
tions; that the Specialty Healthcare standard results in
the proliferation of fractured bargaining units because it
ignores the importance of shared interests among peti-
tioned-for and excluded employees; and that it does not
adequately consider the Section 7 rights of excluded em-
ployees.
Discussion
A. The Board’s Role in Determining Appropriate
Bargaining Units
The National Labor Relations Act (NLRA or Act) and
its legislative history establish three benchmarks that
must guide the Board in making determinations regard-
ing appropriate bargaining units.
First, Section 9(a) of the Act provides that employees
have a right to representation by a labor organization
“designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit
appropriate for such purposes.”7 Thus, questions about
unit appropriateness are to be resolved by reference to
the “purposes” of representation, should a unit majority
choose to be represented—namely, “collective bargain-
ing.”8

7 Sec. 9(a) (emphasis added). The Supreme Court has indicated that
Sec. 9(a) “suggests that employees may seek to organize ‘a unit’ that is
‘appropriate’—not necessarily the single most appropriate unit.” Amer-
ican Hospital Assn. v. NLRB, 499 U.S. 606, 610 (1991) (emphasis in
original; citations omitted). See also Serramonte Oldsmobile, Inc. v.
NLRB, 86 F.3d 227, 236 (D.C. Cir. 1996) (the NLRB “need only select
an appropriate unit, not the most appropriate unit”).
8 As the Board observed 55 years ago:
As we view our obligation under the statute, it is the mandate of Con-
gress that this Board “shall decide in each case . . . the unit appropriate
for the purpose of collective bargaining.” In performing this function,
the Board must maintain the two-fold objective of insuring to employ-
ees their rights to self-organization and freedom of choice in collective
bargaining and of fostering industrial peace and stability through col-
lective bargaining. In determining the appropriate unit, the Board de-
lineates the grouping of employees within which freedom of choice
may be given collective expression. At the same time it creates the
context within which the process of collective bargaining must func-
tion. Because the scope of the unit is basic to and permeates the
Second, Congress contemplated that whenever unit
appropriateness is questioned, the Board would conduct a
meaningful evaluation. Section 9(b) states: “The Board
shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the pur-
poses of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof.”9 Referring
to the “natural reading” of the phrase “in each case,” the
Supreme Court has stated that
whenever there is a disagreement about the appropri-
ateness of a unit, the Board shall resolve the dispute.
Under this reading, the words “in each case” are syn-
onymous with “whenever necessary” or “in any case in
which there is a dispute.” Congress chose not to enact
a general rule that would require plant unions, craft un-
ions, or industry-wide unions for every employer in
every line of commerce, but also chose not to leave the
decision up to employees or employers alone. Instead,
the decision “in each case” in which a dispute arises is
to be made by the Board.10
Third, the language in Section 9(b) as it now exists re-
sulted from intentional legislative choices made by Con-
gress over time, and the history of those changes reveals
an increasing emphasis on the role to be played by the
Board in determining appropriate bargaining units. The
earliest versions of the Wagner Act legislation, intro-
duced in 1934, did not contain the phrase “in each case,”
nor did they state that the Board must “assure to employ-
ees the fullest freedom in exercising the rights guaran-
teed by this Act.” The initial wording simply stated:
“The Board shall determine whether eligibility to partici-
pate in elections shall be determined on the basis of the
employer unit, craft unit, plant unit, or other appropriate
grouping.”11

whole of the collective-bargaining relationship, each unit determina-
tion, in order to further effective expression of the statutory purposes,
must have a direct relevancy to the circumstances within which collec-
tive bargaining is to take place. For, if the unit determination fails to
relate to the factual situation with which the parties must deal, effi-
cient and stable collective bargaining is undermined rather than fos-
tered.
Kalamazoo Paper Box Co., 136 NLRB 134, 137 (1962) (emphasis
added; internal footnotes omitted).
9 NLRA Sec. 9(b) (emphasis added).
10 American Hospital Assn. v. NLRB, 499 U.S. at 611 (emphasis
added). See also id. at 614 (Sec. 9(b) requires “that the Board decide
the appropriate unit in every case in which there is a dispute.”).
11 See, e.g., S. 2926, 73d Cong. § 207 (1934), reprinted in 1 NLRB,
Legislative History of the National Labor Relations Act, 1935 (herein-
after “NLRA Hist.”) 11 (1949). See also S. 2926, 73d Cong. § 10(a)
(1934), reprinted in 1 NLRA Hist. 1095 (“The Board shall decide
whether eligibility to participate in a choice of representatives shall be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
When reintroduced in 1935, the legislation added a
statement that unit determinations were “to effectuate the
policies of this Act.”12 When reported out of the Senate
Labor Committee, the legislation stated that the Board
“shall decide in each case” the appropriateness of the
unit.13 Regarding this language, a House report stated:
Section 9(b) provides that the Board shall determine
whether, in order to effectuate the policy of the bill . . . ,
the unit appropriate for the purposes of collective bar-
gaining shall be the craft unit, plant unit, employer unit,
or other unit. This matter is obviously one for determi-
nation in each individual case, and the only possible
workable arrangement is to authorize the impartial
governmental agency, the Board, to make that determi-
nation.14
In the final enacted version of the Wagner Act, Section 9(b)
stated that the Board’s unit determinations “in each case”
were “to insure to employees the full benefit of their right to
self-organization, and to collective bargaining, and other-
wise to effectuate the policies of this Act.”15

determined on the basis of employer unit, craft unit, plant unit, or other
appropriate unit.”).
12 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 1 NLRA Hist.
1300 (“The Board shall decide whether, in order to effectuate the poli-
cies of this Act, the unit appropriate for the purposes of collective bar-
gaining shall be the employer unit, craft unit, plant unit, or other unit.”).
13 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
2291 (emphasis added). The full provision stated: “The Board shall
decide in each case whether, in order to effectuate the policies of this
Act, the unit appropriate for the purposes of collective bargaining shall
be the employer unit, craft unit, plant unit, or other unit.” Id. See also
H.R. 7937, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2850 (same);
H.R. 7978, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2862 (same).
The Senate report accompanying S. 1958 explained: “Obviously, there
can be no choice of representatives and no bargaining unless units for
such purposes are first determined. And employees themselves cannot
choose these units, because the units must be determined before it can
be known what employees are eligible to participate in a choice of any
kind.” S. Rep. 74-573, at 14 (1935), reprinted in 2 NLRA Hist. 2313
(emphasis added). The language remained unchanged when adopted by
the Senate. See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2
NLRA Hist. 2891 (version of S. 1958 passed by the Senate and referred
to the House Committee of Labor). The same language was contained
in H.R. 7978, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
2903 (version of Wagner Act legislation reported by the House Com-
mittee on Education and Labor).
14 H.R. Rep. 74-969, at 20 (1935), reprinted in 2 NLRA Hist. 2930
(emphasis added).
15 S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
3039 (emphasis added) (Senate-passed bill reported by the House
Committee on Education and Labor). The same language was con-
tained in the version adopted by the House, see S. 1958, 74th Cong. §
9(b) (1935), reprinted in 2 NLRA Hist. 3244, in the version adopted by
the Conference Committee, see H.R. Rep. 74-1371, at 2, reprinted in 2
NLRA Hist. 3253-3254, and in the version that was enacted. See 49
Stat. 449, S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
3274.
In 1947, in connection with the Labor Management
Relations Act (Taft-Hartley Act or LMRA), Congress
devoted further attention to the Board’s unit determina-
tions. The LMRA amended Section 7 so that, in addition
to protecting the right of employees to engage in protect-
ed activities, the Act protected “the right to refrain from
any or all of such activities.”16 The LMRA also added
Section 9(c)(5) to the Act, which states: “In determining
whether a unit is appropriate . . . the extent to which the
employees have organized shall not be controlling.”17 A
House report—although recognizing that the Board pos-
sesses “wide discretion in setting up bargaining units”—
explained that this language
strikes at a practice of the Board by which it has set up
as units appropriate for bargaining whatever group or
groups the petitioning union has organized at the time.
Sometimes, but not always, the Board pretends to find
reasons other than the extent to which the employees
have organized as ground for holding such units to be
appropriate. . . . While the Board may take into consid-
eration the extent to which employees have organized,
this evidence should have little weight, and . . . is not to
be controlling.18
Finally, the LMRA also amended Section 9(b) to state—as
it presently does—that the Board shall make bargaining unit
determinations “in each case” in “order to assure to employ-
ees the fullest freedom in exercising the rights guaranteed by
[the] Act.”19
This legislative history demonstrates that Congress in-
tended that the Board’s review of unit appropriateness
would not be perfunctory. In the language quoted above,
Section 9(b) mandates that the Board determine what
constitutes an appropriate unit “in each case,” with the
additional mandate that the Board only approve a unit
configuration that “assure[s]” employees their “fullest
freedom” in exercising protected rights. Although more

16 NLRA Sec. 7 (emphasis added). See also H.R. Rep. 80-245, at 27
(1947), reprinted in 1 NLRB, Legislative History of the Labor Man-
agement Relations Act, 1947 (hereinafter LMRA Hist.) 318 (1948) (“A
committee amendment assures that when the law states that employees
are to have the rights guaranteed in section 7, the Board will be pre-
vented from compelling employees to exercise such rights against their
will . . . . In other words, when Congress grants to employees the right
to engage in specified activities, it also means to grant them the right to
refrain from engaging therein if they do not wish to do so.”).
17 NLRA Sec. 9(c)(5).
18 H.R. Rep. 80–245, at 37 (1947), reprinted in 1 LMRA Hist. 328
(emphasis added), citing Matter of New England Spun Silk Co., 11
NLRB 852 (1939); Matter of Botany Worsted Mills, 27 NLRB 687
(1940).
19 NLRA Sec. 9(b) (emphasis added). See, e.g., S. 1126, 80th Cong.
§ 9(b), reprinted in 1 LMRA Hist. 117; H.R. 3020, 80th Cong. § 9(b),
reprinted in 1 LMRA Hist. 244–245.
PCC STRUCTURALS, INC. 5
than one appropriate unit might exist, the statutory lan-
guage plainly requires that the Board “in each case” con-
sider multiple potential configurations—i.e., a possible
“employer unit,” “craft unit,” “plant unit” or “subdivi-
sion thereof.”
It is also well established that the Board may not certi-
fy petitioned-for units that are “arbitrary” or “irration-
al”—for example, where functional integration and simi-
larities between two employee groups “are such that nei-
ther group can be said to have any separate community
of interest justifying a separate bargaining unit.”20 How-
ever, it appears clear that Congress did not intend that the
petitioned-for unit would be controlling in all but those
extraordinary cases when the evidence of overlapping
interests between included and excluded employees is
overwhelming, nor did Congress anticipate that every
petitioned-for unit would be accepted unless it is “arbi-
trary” or “irrational.” Congress placed a much higher
burden on the Board “in each case,” which was to deter-
mine which unit configuration(s) satisfy the requirement
of assuring employees their “fullest freedom” in exercis-
ing protected rights.
B. The Board’s Traditional Community-of-Interest Test
is an Appropriate Framework for Unit Determinations
To ensure that the statutory mandate set forth above is
met, the Board traditionally has determined, in each case
in which unit appropriateness is questioned, whether the
employees in a petitioned-for group share a community
of interest sufficiently distinct from the interests of em-
ployees excluded from the petitioned-for group to war-
rant a finding that the proposed group constitutes a sepa-
rate appropriate unit. Throughout nearly all of its histo-
ry, when making this determination, the Board applied a
multi-factor test that requires the Board to assess
whether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer’s other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.
United Operations, Inc., supra, 338 NLRB at 123.

20 Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 120 (D.C. Cir.
1996). See generally Kindred Nursing Centers East, LLC v. NLRB, 727
F.3d 552, 558–559 (6th Cir. 2013); Mitchellace, Inc. v. NLRB, 90 F.3d
1150, 1157 (6th Cir. 1996); Bry-Fern Care Center Inc. v. NLRB, 21
F.3d 706, 709 (6th Cir. 1994); NLRB v. Hardy-Herpolsheimer, 453
F.2d 877, 878 (6th Cir. 1972).
Thus, in Wheeling Island Gaming,21 where the Board
applied its traditional community-of-interest test, the
Board indicated that it
never addresses, solely and in isolation, the question
whether the employees in the unit sought have interests
in common with one another. Numerous groups of
employees fairly can be said to possess employment
conditions or interests “in common.” Our inquiry—
though perhaps not articulated in every case—
necessarily proceeds to a further determination whether
the interests of the group sought are sufficiently distinct
from those of other employees to warrant the estab-
lishment of a separate unit.22
The required assessment of whether the sought-after
employees’ interests are sufficiently distinct from those
of employees excluded from the petitioned-for group
provides some assurance that extent of organizing will
not be determinative, consistent with Section 9(c)(5); it
ensures that bargaining units will not be arbitrary, irra-
tional, or “fractured”—that is, composed of a gerryman-
dered grouping of employees whose interests are insuffi-
ciently distinct from those of other employees to consti-
tute that grouping a separate appropriate unit; and it en-
sures that the Section 7 rights of excluded employees
who share a substantial (but less than “overwhelming”)
community of interests with the sought-after group are
taken into consideration.
C. The Specialty Healthcare Standard Improperly De-
tracts from the Board’s Statutory Responsibility to Make
Appropriate Bargaining Unit Determinations
The Board majority in Specialty Healthcare described
its decision as a mere clarification of preexisting stand-
ards for determining appropriate bargaining units. How-
ever, we believe the majority in Specialty Healthcare
substantially changed the applicable standards. Indeed,
the Board majority itself in Specialty Healthcare referred
to the decision as implementing “changes in the law.”23
In any event, it is not essential to our decision today to
determine whether Specialty Healthcare changed or

21 355 NLRB 637 (2010).
22 Id. at 637 fn. 2 (quoting Newton-Wellesley Hospital, 250 NLRB
409, 411–412 (1980) (emphasis in Wheeling Island Gaming)). In New-
ton-Wellesley Hospital, the Board commented on a proposed “disparity
of interests” test that would “require not a showing of similarities
among employees in a classification to support a separate unit but in-
stead a showing of a disparity of interests among employees in different
classifications which would preclude a combination of those classifica-
tions into a single broader unit.” 250 NLRB at 411. The Board then
observed that “the test of ‘disparateness’ . . . is, in practice, already
encompassed logically within the community-of-interest test as we
historically have applied it.” Id. at 411–412.
23 Specialty Healthcare, 357 NLRB at 947.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
merely clarified then-existing standards. Regardless of
how they are characterized, the Board majority in Spe-
cialty Healthcare did three things that have affected the
Board’s bargaining-unit determinations since Specialty
Healthcare was decided.
First, in Specialty Healthcare, the majority overruled
Park Manor Care Center, supra, which set forth the
standard for determining appropriate bargaining units in
non-acute healthcare facilities.24
Second, the majority in Specialty Healthcare estab-
lished that the “traditional community-of-interest ap-
proach” would thereafter apply to unit determinations in
such facilities rather than the so-called “pragmatic” test
described in Park Manor. 357 NLRB at 937-941.
Third and most significantly, although the majority in
Specialty Healthcare nominally was considering unit
questions specific to non-acute healthcare facilities,25 the
Specialty Healthcare decision applied to all workplaces
(except acute care hospitals) whenever a party argues
that a petitioned-for unit improperly excludes certain
employees. Although the majority purported to apply the
traditional community-of-interests standard as exempli-
fied in Wheeling Island Gaming,26 the Specialty
Healthcare standard discounts—or eliminates altogeth-
er—any assessment of whether shared interests among
employees within the petitioned-for unit are sufficiently
distinct from the interests of excluded employees to war-
rant a finding that the smaller petitioned-for unit is ap-
propriate.27 This aspect of Specialty Healthcare is obvi-
ous from the majority test itself, under which, if the peti-
tioned-for employees are deemed readily identifiable as a

24 As noted above, we reinstate Park Manor Care Center. See supra
fn. 3. Prior to issuing its decision in Specialty Healthcare, the Board
issued an invitation to the public to file briefs addressing the Park
Manor standard and various questions regarding appropriate-unit de-
terminations in non-acute healthcare facilities (which were potentially
distinguishable from acute care facilities, in which bargaining-unit
determinations are governed by the Board’s 1989 healthcare rule, 54
Fed. Reg. 16336–16348 (1989)). See Specialty Healthcare, 356 NLRB
289 (2010). However, Specialty Healthcare swept far beyond this
narrow issue to encompass appropriate-unit determinations in all indus-
tries.
25 See fn. 24, supra.
26 357 NLRB at 944–946. The majority’s claim that it was merely
clarifying and not changing the traditional community-of-interests test
appeared to be necessitated by the fact that then-Chairman Liebman
was in the majority in both Wheeling Island Gaming (where the Board
applied the traditional community-of-interest standard) and Specialty
Healthcare (where, as explained in the text, we believe the Board sub-
stantially changed the traditional standard).
27 Indeed, no sooner did the Specialty Healthcare majority opinion
quote the “sufficiently distinct” standard from Wheeling Island Gaming
than it set about quibbling with that standard. See Specialty
Healthcare, 357 NLRB at 945 (“Of course, that language leaves open
the question of what degree of difference renders the groups’ interests
‘sufficiently distinct.’”).
group and share a community of interests among them-
selves, this inward-looking inquiry is controlling, regard-
less of the interests of excluded employees, except for
the rare instance where it can be proven that the excluded
employees share an “overwhelming” community of in-
terests with employees in the petitioned-for unit.28 As
noted previously, we believe this aspect of Specialty
Healthcare undermines fulfillment of the Board’s re-
sponsibility to “assure” to employees “in each case” their
“fullest freedom” in the exercise of Section 7 rights, as
stated in Section 9(b) of the Act. Moreover, by extin-
guishing scrutiny of the interests that excluded employ-
ees have in common with those in the petitioned-for unit
except in the rare case where the employer can satisfy its
burden of proving that excluded employees share an
“overwhelming” community of interests with employees
in the proposed unit, Specialty Healthcare created a re-
gime under which the petitioned-for unit is controlling in
all but narrow and highly unusual circumstances.
In these respects, Specialty Healthcare detracts from
what Congress contemplated when it added mandatory
language to Section 9(b) directing the Board to determine
the appropriate bargaining unit “in each case” and man-
dating that the Board’s unit determinations guarantee to
employees the “fullest freedom” in exercising their Sec-
tion 7 rights. Most importantly, the enumeration of po-
tential unit configurations in Section 9(b) demonstrates,
inescapably, that Congress intended that the Board “in
each case” would carefully consider the interests of all
employees. This is evident from the fact that the types of
bargaining units mentioned in Section 9(b), to be evalu-
ated by the Board in each case, include “the employer
unit, craft unit, plant unit, or subdivision thereof.” In
contrast with this language, Specialty Healthcare gives
all-but-conclusive deference to every petitioned-for
“subdivision” unit, without attaching any weight to the
interests of excluded employees in potential “employer,”
“craft,” “plant,” or alternative “subdivision” units, unless
the employer proves the existence of “overwhelming”

28 The majority in Specialty Healthcare announced the following test
for making appropriate-unit determinations:
[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.
357 NLRB at 945–946 (emphasis added).
PCC STRUCTURALS, INC. 7
interests shared between petitioned-for employees and
those outside the petitioned-for “subdivision.” The dis-
crepancy between what Section 9(b) requires, on the one
hand, and what Specialty Healthcare precludes, on the
other, is reinforced by Section 9(c)(5), added to the Act
in 1947, where Congress expressly states that “[i]n de-
termining whether a unit is appropriate . . . the extent to
which the employees have organized shall not be control-
ling.” We believe Specialty Healthcare effectively
makes the extent of union organizing “controlling,” or at
the very least gives far greater weight to that factor than
statutory policy warrants, because under the Specialty
Healthcare standard, the petitioned-for unit is deemed
appropriate in all but rare cases. Section 9(b) and
9(c)(5), considered together, leave no doubt that Con-
gress expected the Board to give careful consideration to
the interests of all employees when making unit determi-
nations, and Congress did not intend that the Board
would summarily reject arguments, in all but the most
unusual circumstances, that the petitioned-for unit fails to
appropriately accommodate the Section 7 interests of
employees outside the “subdivision” specified in the
election petition.
Having reviewed the Specialty Healthcare decision in
light of the Act’s policies and the Board’s subsequent
applications of the “overwhelming community of inter-
est” standard, we conclude that the standard adopted in
Specialty Healthcare is fundamentally flawed. We find
there are sound policy reasons for returning to the tradi-
tional community-of-interest standard that the Board has
applied throughout most of its history, 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 “over-
whelming” community of interests. In making this find-
ing, we especially rely on the following considerations.
First, we agree with the view expressed by Chairman
(then-Member) Miscimarra in his dissent in Macy’s,
Inc.,29 that Specialty Healthcare constituted an unwar-
ranted departure from the standards that have long gov-
erned the Board’s appropriate-bargaining-unit determina-
tions.30 Despite reciting the traditional test and claiming
that it was merely clarifying that test, the majority in
Specialty Healthcare clearly held that “[w]hen the peti-
tioned-for unit contains employees readily identified as a
group who share a community of interest” among them-
selves, an employer opposing this unit as inappropriate
because it excludes certain employees bears the next-to-

29 361 NLRB 12 (2015), enfd. 824 F.3d 557 (5th Cir. 2016), rehear-
ing denied 844 F.3d 188 (5th Cir. 2016), cert. denied 137 S.Ct. 2265
(2017).
30 Macy’s, supra at 42 (Member Miscimarra, dissenting).
impossible burden of proving that “employees inside and
outside [the] proposed unit share an overwhelming
community of interest.”31 It is the Board’s responsibility
to determine unit appropriateness based on a careful ex-
amination of the community of interests of employees
both within and outside the proposed unit. The Board
reaffirmed this approach in Wheeling Island Gaming,32 in
which it recognized that the Board’s task is to examine
“whether the interests of the group sought are sufficiently
distinct from those of other [excluded] employees to war-
rant establishment of a separate unit.”33 And in Wheeling
Island Gaming, the Board quoted with approval from
Newton-Wellesley Hospital, a decision in which the
Board found it unnecessary to adopt a proposed “dispari-
ty of interests” test that would “require not a showing of
similarities among employees in a classification to sup-
port a separate unit but instead a showing of a disparity
of interests among employees in different classifications
which would preclude a combination of those classifica-
tions into a single broader unit” on the basis that such a
test “is, in practice, already encompassed logically within
the community-of-interest test as we historically have
applied it.”34 We reject as implausible the Specialty
Healthcare majority’s statement that they were merely
restating and clarifying the Board’s traditional test. Yet,
as indicated above, we need not conclusively determine
whether Specialty Healthcare changed or merely clari-
fied the Board’s traditional community-of-interest stand-
ard governing appropriate-unit determinations. We
merely hold that when it is asserted that the smallest ap-
propriate unit must include employees excluded from the
petitioned-for unit, the Board will no longer be con-
strained by the extraordinary deference that Specialty
Healthcare affords to the petitioned-for unit. Rather,
applying the Board’s traditional community-of-interest
factors, the Board will determine whether the petitioned-
for employees share a community of interest sufficiently
distinct from employees excluded from the proposed unit
to warrant a separate appropriate unit; and the Board may
find that the exclusion of certain employees renders the
petitioned-for unit inappropriate even when excluded
employees do not share an “overwhelming” community
of interest with employees in the petitioned-for unit.
Second, although the Board in Specialty Healthcare
stated that its decision was “not intended to disturb” rules
developed by the Board regarding particular industries,35
subsequent decisions have demonstrated that petitioned-

31 357 NLRB at 946.
32 355 NLRB at 641–642.
33 355 NLRB at 637 fn. 2 (emphasis in original).
34 250 NLRB at 411–412.
35 357 NLRB at 946 fn. 29.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
for units are deemed controlling under Specialty
Healthcare even when a broader unit is clearly com-
pelled by industry standards. Thus, in Macy’s, supra, a
Board majority, over then-Member Miscimarra’s dissent,
found appropriate a unit limited to employees in the
store’s cosmetics and fragrances department—one of 11
sales departments in Macy’s Saugus, Massachusetts
store—notwithstanding the Board’s longstanding rule
that favors storewide units in the retail industry.36 In DPI
Secuprint,37 the Board majority, over then-Member John-
son’s dissent, found appropriate a unit consisting of pre-
press, digital press, offset bindery, digital bindery, and
shipping and receiving employees—excluding the press
operators and feeder-tenders at the heart of the employ-
er’s functionally integrated production process—even
though the smaller unit contravened the Board’s “tradi-
tional” rule that press and prepress employees should
ordinarily be included in the same “lithographic unit.”38
As this history shows, the Specialty Healthcare “over-
whelming community of interest” standard has effective-
ly superseded the Board’s traditional industry-specific
rules governing appropriate unit determinations, despite
the Specialty Healthcare majority’s claim to the contra-
ry.39
Third, we find that Sections 9(b) and 9(c)(5), consid-
ered together, strongly favor applying the traditional
community-of-interest standard when making bargaining
unit determinations, without giving the petitioned-for
unit an artificial supremacy that substantially limits the
Board’s discretion when discharging its statutory duty to
determine unit appropriateness.40 In short, the Board’s
role “in each case” should be to undertake a broader and
more refined analysis, and to play a more active role,
when determining whether or not a proposed unit is “ap-
propriate” than is allowed under the Specialty Healthcare
standard.

36 See, e.g., May Department Stores Co., 97 NLRB 1007, 1008
(1952) (calling the “storewide unit” in the retail industry “the optimum
unit for the purposes of collective bargaining”).
37 362 NLRB No. 172 (2015).
38 See, e.g., AGI Klearfold, LLC, 350 NLRB 538, 540 (2007) (citing
cases dating back to 1956).
39 Because we have overruled Specialty Healthcare, those decisions
applying Specialty Healthcare—Macy’s, supra; DPI Secuprint, supra;
DTG Operations, Inc., 357 NLRB 2122 (2011); and Northrop Grum-
man Shipbuilding, Inc., 357 NLRB 2015 (2011)—are no longer prece-
dential.
40 As recited in the text, the Act and its legislative history indicate
that Congress requires the Board to undertake a twofold inquiry. First,
the Board “shall decide in each case whether” the appropriate unit
“shall be the employer unit, craft unit, plant unit, or subdivision there-
of.” NLRA Sec. 9(b) (emphasis added). Second, when making such a
decision, the Board must determine which of these groupings “assure[s]
to employees the fullest freedom in exercising the rights guaranteed by
[the] Act.” Id. (emphasis added).
Fourth, applying the historical community-of-interest
standard rather than the “overwhelming” community-of-
interest requirement will ensure that the Board does not
unduly limit its focus to the Section 7 rights of employ-
ees in the petitioned-for unit, while disregarding or dis-
counting the Section 7 rights of excluded employees ex-
cept in the rare case when excluded employees share
“overwhelming” interests (i.e., interests that “‘overlap
almost completely’”) with petitioned-for employees.41
All statutory employees have Section 7 rights, including
employees that have been excluded from the petitioned-
for unit. And the two core principles at the heart of Sec-
tion 9(a)—the principles of exclusive representation and
majority rule—require bargaining-unit determinations
that protect the Section 7 rights of all employees. Hence-
forth, the Board’s determination of unit appropriateness
will consider the Section 7 rights of employees excluded
from the proposed unit and those included in that unit,
regardless of whether there are “overwhelming” interests
between the two groups. We believe this corrects the
imbalance created by Specialty Healthcare, which makes
“the relationship between petitioned-for unit employees
and excluded coworkers irrelevant in all but the most
exceptional circumstances.”42 Even if Specialty
Healthcare permits the Board to consider the interests of
employees excluded from the petitioned-for unit, we be-
lieve the overwhelming community-of-interest standard
unduly limits the Board’s discretion when evaluating unit
appropriateness, and nothing in the Act imposes such a
requirement on the Board. Thus, we find that consider-
ing the interests of excluded employees along with those
in the petitioned-for unit, without the “overwhelming”
community-of-interest requirement, better effectuates the
policies and purposes of the Act, which requires the
Board to “assure to employees the fullest freedom in
exercising the rights guaranteed by [the] Act.”43

41 Specialty Healthcare, supra at 944 (quoting Blue Man Vegas, su-
pra at 422).
42 Id. at 948 (Member Hayes, dissenting). See also Cristal USA,
Inc., 365 NLRB No. 82, slip op. at 1–2 (2017) (Chairman Miscimarra,
dissenting); DTG Operations, supra, 357 NLRB at 2129-2130 (Mem-
ber Hayes, dissenting); Northrop Grumman Shipbuilding, supra, 357
NLRB at 2020-2023 (Member Hayes, dissenting). Further, the possi-
bility that excluded employees may seek separate representation in one
or more separate bargaining units does not solve the problem caused by
the failure to give reasonable consideration to their inclusion in a larger
unit. The Act’s requirement that the Board “assure to employees the
fullest freedom” in exercising protected rights requires the Board “in
each case” to consider the interests of all employees—whether or not
they are included in the petitioned-for unit—so the Board can “decide”
whether the unit should be the “employer unit, craft unit, plant unit, or
subdivision thereof.” NLRA Sec. 9(b).
43 Sec. 9(b).
PCC STRUCTURALS, INC. 9
We recognize that several reviewing courts have indi-
cated that the Specialty Healthcare standard on its face
articulated a permissible standard regarding unit appro-
priateness. In most of these cases, however, the courts
expressly relied on the Specialty Healthcare majority’s
recitation of traditional community-of-interest principles,
they attached weight to the claim that the Board was not
abandoning those traditional principles, and they relied
heavily on the broad deference that courts afford to the
Board when interpreting the Act.44 Moreover, when var-

44 See, e.g., FedEx Freight, Inc. v. NLRB, 839 F.3d 636, 637 (7th
Cir. 2016) (holding that the “statutory criterion for whether a union can
represent a unit of workers is whether the unit is ‘appropriate’ for col-
lective bargaining, 29 U.S.C. § 159(a), which . . . requires a determina-
tion that the members of the unit have common employment con-
cerns—a ‘community of interest’—different from the concerns of the
company’s other employees”) (emphasis added); Nestle Dreyer's Ice
Cream Co. v. NLRB, 821 F.3d 489, 495 (4th Cir. 2016) (construing the
first step of the community-of-interests test to require “examining the
community-of-interest factors to determine that the included employees
share a community of interest and are unlike all the other employees the
Employer would include in the unit”) (internal quotations omitted).
See also Macy’s Inc. v. NLRB, 824 F.3d 557, 568–569 (5th Cir. 2016)
(rejecting argument that Specialty Healthcare looks solely and in isola-
tion at whether employees in petitioned-for unit have interests in com-
mon with one another); NLRB v. FedEx Freight, Inc., 832 F.3d 432,
441 (3d Cir. 2016) (relying on Specialty Healthcare’s recitation of the
community-of-interest test in finding that the Board “does not look only
at the commonalities within the petitioned-for unit” but asks “whether
the employees are organized into a separate department . . . [and] have
distinct skills and training”); Rhino Northwest, LLC v. NLRB, 867 F.3d
95, 100–101, 103 (D.C. Cir. 2017) (concluding that Specialty
Healthcare did not depart from prior precedent, but affirming appropri-
ateness of bargaining unit where distinctions between petitioned-for
and excluded employees “concerning wages, hours, training, supervi-
sion, equipment, and physical working conditions—[were] signifi-
cant”). We note that the D.C. Circuit in Rhino Northwest (867 F.3d at
101) cited and relied on its prior decision in Blue Man Vegas, supra,
where the court recited the traditional community-of-interest factors as
including “whether, in distinction from other employees, the employees
in the proposed unit have different methods of compensation, hours of
work, benefits, supervision, training and skills; if their contact with
other employees is infrequent; if their work functions are not integrated
with those of other employees; and if they have historically been part of
a distinct bargaining unit.” Blue Man Vegas, supra at 421 (internal
quotations omitted; emphasis added).
The Board’s decision in Specialty Healthcare itself was enforced by
the Court of Appeals for the Sixth Circuit in Kindred Nursing Centers
East, supra, where the court found that Specialty Healthcare did not
change the extant standard and did not constitute an abuse of discretion
by the Board. Nevertheless, nothing in Kindred Nursing Centers sug-
gests that the Sixth Circuit considered whether Specialty Healthcare
improperly limits the Board’s statutory role, contrary to the Act and its
legislative history, by affording too much deference to the petitioned-
for unit in derogation of Sec. 9(b)’s requirement that the Board “in each
case” undertake a broader and more refined analysis, play a more active
role, and consider the Section 7 rights of excluded as well as included
employees when determining an appropriate unit. See Macy’s, supra,
42 fn. 58 (Member Miscimarra, dissenting). While several courts of
appeals have concluded that the Specialty Healthcare standard reflects
a permissible construction of the Act, we respectfully disagree with that
ious courts of appeals have upheld Specialty Healthcare
as a permissible interpretation of the Act, the reviewing
courts have indicated that the community-of-interest test
requires the Board to evaluate shared interests both with-
in and outside the petitioned-for unit as an essential part
of the first step of the Specialty Healthcare analysis,
where the Board determines whether the petitioned-for
employees share a community of interests. Of particular
note in this regard is the recent decision of the Second
Circuit in Constellation Brands, U.S. Operations, Inc. v.
NLRB, 842 F.3d 784 (2d Cir. 2016). In Constellation
Brands, the Regional Director only considered the com-
munity of interests shared among the employees within
the petitioned-for group before shifting the burden to the
employer to demonstrate that additional employees
shared an overwhelming community of interest with that
group. Although the Second Circuit upheld the Specialty
Healthcare framework, it disapproved of the Regional
Director’s incomplete community-of-interest analysis at
the first step of that framework, and the court remanded
the case to the Board to apply a construction of Specialty
Healthcare that requires the Board, at the first step of the
analysis, not only to assess the shared interests among
employees within the proposed unit, but also to explain
why employees outside the proposed unit “have mean-
ingfully distinct interests . . . that outweigh similarities”
with the included employees. The court stated:
Our sister circuits have accepted the Specialty
Healthcare framework based on the understanding that
it requires the Board to ensure, at step one, that em-
ployees are not inappropriately “excluded [from a bar-
gaining unit] on the basis of meager differences.” To
properly apply this framework, the Board must analyze
at step one the facts presented to: (a) identify shared in-
terests among members of the petitioned-for unit, and
(b) explain why excluded employees have meaningful-
ly distinct interests in the context of collective bargain-
ing that outweigh similarities with unit members.

assessment. However, we do not base our decision to overturn the
Specialty Healthcare standard on our position that Specialty Healthcare
is statutorily prohibited. Rather, we base today’s decision on the poli-
cies reflected in the Act and its legislative history, the Board’s experi-
ence in applying the pre—and post–Specialty Healthcare standards,
and our conclusion that the Act is best served by having the Board
determine unit appropriateness in each case without favoring or disfa-
voring the bargaining unit described in the petition.
Consistent with our return to the traditional community-of-interest
standard that the Board applied prior to Specialty Healthcare, the Board
will continue to apply existing principles regarding bargaining units
that the Board deems presumptively appropriate, and nothing in today’s
decision changes or abandons those principles.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Constellation Brands, 842 F.3d at 794 (quoting Nestle
Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489, 500 (4th
Cir. 2016)) (emphasis in original).45
In sum, the Board’s prior approach, to which we return
today, permits the Agency to undertake a more vigorous
assessment of unit appropriateness, regardless of whether
an “overwhelming” community of interest exists between
excluded employees and those in the petitioned-for unit.
Regardless of whether Specialty Healthcare is permissi-
ble, we believe abandoning the “overwhelming” com-
munity-of-interest standard better serves the Board in
carrying out its responsibility to make unit determina-
tions that assure to employees their “fullest freedom” in
exercising their rights under the Act. This approach
comports better with the statutory language set forth in
Section 9(a), 9(b) and 9(c)(5). Obviously, the Act does
not compel the Board to give extraordinary deference to
the petitioned-for unit. Likewise, when the record estab-
lishes that petitioned-for employees share a community

45 Although the Second Circuit in Constellation Brands held that the
Board erroneously applied the Specialty Healthcare standard (specifi-
cally, the first step of the Specialty Healthcare analysis), we believe the
Board’s error in Constellation Brands (i.e., the failure to consider
whether the interests of petitioned-for employees were sufficiently
distinct from the interests of excluded employees) is inherent in the
Specialty Healthcare standard itself. Numerous Board decisions
demonstrate that Specialty Healthcare does not permit consideration of
the interests of employees excluded from the petitioned-for unit (except
in the rare instance where employers can prove such employees have an
“overwhelming community of interests” with the petitioned-for em-
ployees). In case after case applying the Specialty Healthcare standard,
the Board has conducted precisely the type of analysis that the Second
Circuit has deemed a misapplication of that standard. Thus, it appears
that—in Constellation Brands and other cases—the Board has applied
Specialty Healthcare precisely the way the Specialty Healthcare major-
ity intended, which means the standard itself is the problem. See, e.g.,
DTG Operations, supra, 357 NLRB at 2126 (finding that employees in
the petitioned-for unit share a community of interest based solely on the
shared interests of employees within the proposed unit); Northrop
Grumman Shipbuilding, supra, 357 NLRB at 2017 (same); Macy’s,
supra, 361 NLRB at 19–20 (same); DPI Secuprint, supra, 362 NLRB
No. 172, slip op. at 4–5 (same); Yale University, 365 NLRB No. 40
(2017) (denying review of Regional Director’s decision to direct nine
separate elections in nine petitioned-for units of teaching fellows in
nine different academic departments, based on his findings that teach-
ing fellows within each separate academic department share a commu-
nity of interest among themselves and that the University failed to show
that the smallest appropriate unit must include all teaching fellows,
despite evidence that all teaching fellows “share common duties, hours,
wages, and health care benefits” and that the Graduate School of Arts
and Sciences “exerts significant centralized control” over the Teaching
Fellows Program). In any event, regardless of whether the first step of
the Specialty Healthcare standard permits or requires the Board to
consider the interests of employees outside the petitioned-for unit, it is
clear that Specialty Healthcare has created significant confusion and
uncertainty regarding this important issue (reflected in the above cases,
among others), which is an additional consideration that supports aban-
doning the Specialty Healthcare standard.
of interests with employees excluded from the peti-
tioned-for unit, the Act does not compel the Board to
disregard the interests of the excluded employees in all
but those rare instances when the different employee
groups share an “overwhelming” community of interests,
merely because excluded employees were omitted from
the petition.
Finally, although the Board overrules Specialty
Healthcare and will no longer apply the “overwhelming
community of interests” standard when determining
whether an appropriate bargaining unit must include em-
ployees excluded from the petitioned-for unit, the Board
retains the discretion—after engaging in an appropriate
review of employee community of interests—to approve
the unit described in the petition, provided that the unit’s
appropriateness is supported by the record and that the
petitioned-for unit will help to assure employees their
fullest freedom in exercising rights protected by the Act.
Nothing in today’s decision disfavors the unit configura-
tion sought by a petitioner or described in a representa-
tion petition filed with the Board. Rather, we merely
require that the Board undertake an examination of unit
appropriateness “‘in each case’ in which a dispute arises”
over that issue,46 taking into consideration the interests of
employees both within and outside the petitioned-for
unit, in light of the policies and purposes of the Act.
D. The Regional Director’s Decision Illustrates the Defi-
ciencies in the Specialty Healthcare Standard
Turning to the case before us, the Regional Director’s
analysis under the first step of the Specialty Healthcare
standard focused on the interests shared among employ-
ees within the petitioned-for group, without examining
whether those interests were distinct from the interests of
excluded employees. It was not until after he had shifted
the burden to the Employer to demonstrate an “over-
whelming community of interest” that the Regional Di-
rector considered whether the unit employees’ interests
are distinct from those of other production employees.
The Regional Director’s failure to perform a full com-
munity-of-interest analysis at step one of the Specialty
Healthcare test is precisely the flaw that the Second Cir-
cuit identified in Constellation Brands, supra. Contrary
to the Second Circuit’s discussion in that case, however,
we believe the problem is not in the way the Specialty
Healthcare standard is being applied, but in the standard
itself.47 Despite its rote recitation of the traditional test,
the Specialty Healthcare majority shifted to the employer
the burden with respect to the critical part of the analy-

46 American Hospital Assn. v. NLRB, 499 U.S. at 611 (quoting Sec.
9(b)).
47 See supra fn. 57.
PCC STRUCTURALS, INC. 11
sis—whether employees in the proposed unit share a
community of interest sufficiently distinct from the inter-
ests of employees excluded from that unit to warrant a
separate bargaining unit—while also imposing on the
employer a nearly insurmountable burden, thus effective-
ly foreclosing meaningful unit determinations.48
Accordingly, having overruled Specialty Healthcare,
we reaffirm that the community-of-interest test requires
the Board in each case to determine
whether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer’s other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.
United Operations, supra, 338 NLRB at 123. In weighing
both the shared and the distinct interests of petitioned-for
and excluded employees, we take guidance from the Second
Circuit’s decision in Constellation Brands. Thus, we agree
with the Second Circuit that the Board must determine
whether “excluded employees have meaningfully distinct
interests in the context of collective bargaining that out-
weigh similarities with unit members.” Constellation
Brands, supra at 794. Having made that determination—
applying the Board’s traditional community-of-interest fac-
tors recited above—the appropriate-unit analysis is at an
end. Parties who believe that a petitioned-for group im-
properly excludes employees whose interests are not suffi-
ciently distinct from those of employees within the proposed
group will, of course, introduce evidence in support of their
position in the pre-election hearing. However, at no point
does the burden shift to the employer to show that any addi-
tional employees it seeks to include share an overwhelming

48 The Regional Director’s Decision and Direction of Election in the
instant case also illustrates the confusion that Specialty Healthcare has
created with respect to specific community-of-interest factors. Among
these, the test asks whether petitioned-for employees are functionally
integrated with the employer’s other employees. The Regional Director
correctly described this factor, but in applying it in the first step of his
analysis, he only determined that the petitioned-for welders are func-
tionally integrated with each other. He concluded that they are because
they fulfill the same functions within the production process—
essentially restating his rationale for concluding that the unit is readily
identifiable as a group. This is precisely the sort of misconception
Specialty Healthcare invites by eliminating, or at least appearing to
eliminate, from the first step of the analysis consideration of the inter-
ests of employees in the petitioned-for group in contradistinction from
those of employees excluded from that group, and by relegating that
consideration to the “overwhelming community of interest” analysis at
the second step of the Specialty Healthcare test.
community of interest with employees in the petitioned-for
unit. We make clear today that the Board, when determin-
ing unit appropriateness, is not constrained by whether or
not an “overwhelming” community of interest exists be-
tween petitioned-for employees and those excluded from
that unit. Finally, where applicable, the analysis must con-
sider guidelines that the Board has established for specific
industries with regard to appropriate unit configurations.
E. Response to the Dissent
Most of our dissenting colleagues’ objections have
been effectively addressed above. However, some of
their contentions warrant the following observations.
First, there is no merit in our dissenting colleagues’
statement that today’s decision constitutes “de facto
rulemaking without the legally-required public participa-
tion,” “unprincipled corner-cutting,” or “hypocrisy” be-
cause we have not invited amicus briefing. Preliminari-
ly. the Supreme Court has clearly stated that “the choice
between rulemaking and adjudication lies in the first in-
stance within the Board’s discretion,” and the “Board is
not precluded from announcing new principles in an ad-
judicative proceeding.”49 Obviously, the Board decided
Specialty Healthcare without engaging in rulemaking,
and with extremely rare exceptions, the Board has
strongly favored case adjudication over rulemaking. The
Board has similar discretion with respect to whether to
invite briefing prior to adjudicating a major issue. We
respectfully disagree with our dissenting colleagues’
statements that the Board maintains a “routine practice to
solicit and accept amicus briefing in significant cases” or
a “tradition of inviting amicus briefing in cases . . . where
the Board is considering reversing significant precedent.”
In the past decade, the Board has freely overruled or dis-
regarded established precedent in numerous cases with-
out supplemental briefing. See, e.g., E. I. du Pont de
Nemours, 364 NLRB No. 113 (2016) (overruling 12-
year-old precedent in Courier-Journal, 342 NLRB 1093
(2004), and 52-year-old precedent in Shell Oil Co., 149
NLRB 283 (1964), without inviting briefing ); Graymont
PA, Inc., 364 NLRB No. 37 (2016) (overruling 9-year-
old precedent in Raley’s Supermarkets & Drug Centers,
349 NLRB 26 (2007), without inviting briefing); Loomis
Armored U.S., Inc., 364 NLRB No. 23 (2016) (overrul-
ing 32-year-old precedent in Wells Fargo Corp., 270
NLRB 787 (1984), without inviting briefing); Lincoln
Lutheran of Racine, 362 NLRB No. 188 (2015) (overrul-
ing 53-year-old precedent in Bethlehem Steel, 136 NLRB
1500 (1962), without inviting briefing); Pressroom
Cleaners, 361 NLRB 643 (2014) (overruling 8-year-old

49 NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
precedent in Planned Building Services, 347 NLRB 670
(2006), without inviting briefing); and Fresh & Easy
Neighborhood Market, Inc., 361 NLRB 151 (2014)
(overruling 10-year-old precedent in Holling Press, 343
NLRB 301 (2004), without inviting briefing). It is ironic
that our colleagues cite Specialty Healthcare as an ex-
ample of the Board soliciting briefs before making “dra-
matic changes to rules of general applicability governing
one of the Agency’s core functions.” The Board did so-
licit briefs in Specialty Healthcare,50 but the questions
posed in the notice and invitation to file briefs in Special-
ty Healthcare focused primarily on the standard for de-
termining appropriate units in nursing homes and other
nonacute healthcare facilities.51 Although the Board also
noted that it was considering whether any revision of the
standard applicable to nonacute healthcare facilities
“should apply more generally,”52 the decision that subse-
quently issued made “changes in the law”53 affecting
employers in all industries. In any event, as we recently
stated, “[n]either the Act, the Board’s Rules, nor the
Administrative Procedures Act requires the Board to
invite amicus briefing before reconsidering precedent.”
UPMC, 365 NLRB No. 153, slip op. at 10 (2017). Final-
ly, our dissenting colleagues obviously have no blanket
commitment to “notice . . . and public participation.”
Just this past week, Members Pearce and McFerran dis-
sented from a request for information that merely asked
interested members of the public whether the Board’s

50 See Specialty Healthcare, 356 NLRB at 289 (Notice and Invita-
tion to File Briefs).
51 Id. Indeed, the “rationale” for the Board’s solicitation of briefs in
Specialty Healthcare focused primarily on considerations relevant to
bargaining-unit determinations in long-term and other nonacute
healthcare facilities. Thus, the Board’s solicitation of briefs stated:
The long-term care industry in the United States, indeed around the
world, has undergone a radical transformation in the past 20 years in
the face of an aging population, changing consumer preferences relat-
ing to the form and location of long-term care, and a more general
restructuring of the provision of health care, most importantly, a drastic
reduction in the average length of stays in acute care hospitals. As the
Henry J. Kaiser Family Foundation reported in 2007, “Over the past 20
years, nursing home care has changed a great deal.” Moreover, “[t]here
has been a proliferation of facility-like residential alternatives to nurs-
ing homes.” Indeed . . . the Board did not resolve the question of ap-
propriate units in long-term care facilities when it engaged in rulemak-
ing ultimately limited to acute health care facilities in 1989 because of
“evidence of rapid transition in the industry.” In addition, employment
in long-term care has experienced dramatic growth in the last 20 years
and that trend is projected to continue. Finally, long-term care employ-
ees have demonstrated a persistent interest in invoking the statutory
process for obtaining representation, filing almost 3000 petitions under
Section 9 of the Act during the last decade.
Id. at 290 (footnotes omitted).
52 Id. at 291.
53 Specialty Healthcare, 357 NLRB at 947.
extensive rewriting of its representation-election proce-
dures should be retained, modified or rescinded.54
Second, our dissenting colleagues greatly exaggerate
today’s ruling by asserting that abandoning Specialty
Healthcare represents a “radical new approach,” nor are
they correct that the Board is departing from the princi-
ple that a proposed unit need only be an appropriate unit
and need not be the most appropriate unit.55 As stated
previously, nothing in today’s decision provides for the
Board to reject an appropriate petitioned-for bargaining
unit on the basis that a larger unit is more appropriate.
Our decision merely underscores that the Act requires the
Board “in each case” to decide whether the petitioned-for
unit is appropriate.56 When evaluating unit appropriate-
ness, as the Act requires, the Board will consider differ-
ent unit configurations identified in the statute (i.e., “the
employer unit, craft unit, plant unit, or subdivision there-
of”), and nothing in today’s decision precludes the possi-
bility that, in a given case, multiple potential bargaining
units may be appropriate. We merely hold that, when a
petitioned-for unit excludes certain employees, the Board
will consider the possibility that excluded employees
must be part of an appropriate unit, without regard to
whether or not an “overwhelming” community of inter-
ests exists between the petitioned-for employees and
those excluded from the unit.
Third, our colleagues suggest that abandoning the
“overwhelming” community-of-interest standard will
“maximize” the ability of employers “to manipulate the
unit sought in the petition.” As noted above, we believe
the “overwhelming” community-of-interest standard un-
duly limits the Board’s discretion when evaluating unit
appropriateness. And under the standard we return to
today, the Board obviously retains the discretion—after
engaging in an appropriate review of employee commu-
nity of interests—to approve the unit described in the
petition. Again, nothing in today’s decision confers upon
employers the ability to “manipulate” the Board’s deter-
minations regarding unit appropriateness, nor does to-
day’s decision disfavor the unit sought by the petitioner.

54 See 82 Fed. Reg. 58784-58790 (2017) (NLRB Notice and Request
for Information, Representation-Case Procedures) (dissenting views of
Members Pearce and McFerran).
55 Sec. 9(a) provides that majority support in favor of union repre-
sentation for the purposes of collective bargaining must exist in “a unit
appropriate for such purposes.” It is well established that such a unit
need not be the most appropriate unit. However, the plain language of
Sec. 9(b) makes clear that the Board has the responsibility “in each
case” to determine unit appropriateness. Specifically, Sec. 9(b) states:
“The Board shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights guaranteed by
this Act, the unit appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or subdivision thereof.”
56 Sec. 9(b).
PCC STRUCTURALS, INC. 13
Finally, we do not find persuasive our dissenting col-
leagues’ insistence that the Board must retain the “over-
whelming” community-of-interest standard because the
Board, applying this standard, has found petitioned-for
bargaining units inappropriate in some cases. This does
not rectify the fundamental problem of the Specialty
Healthcare standard. On its face, the “overwhelming”
community-of-interest standard requires deference to the
petitioned-for bargaining unit unless excluded and in-
cluded employees share an “overwhelming” community
of interests, and this prevents the Board from entertain-
ing the possibility that the smallest appropriate unit must
include certain excluded employees even absent an
“overwhelming” community of interests. We believe
this is contrary to what Congress intended, as prescribed
in the Act. In any event, we believe the Act’s policies
and purposes are better served by overruling Specialty
Healthcare and abandoning the “overwhelming” com-
munity-of-interests standard.
ORDER
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election is granted
as it raises substantial issues warranting review with re-
spect to whether the petitioned-for unit is an appropriate
unit for bargaining. Accordingly, this case is remanded
to the Regional Director for further appropriate action
consistent with this Order, including reopening the rec-
ord, if necessary, and analyzing the appropriateness of
the unit under the standard articulated herein, and for the
issuance of a supplemental decision.57
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

57 As evidenced by our remand, we express no opinion with respect
to whether the petitioned-for unit is appropriate. Also, contrary to the
dissent, our remand does not require a choice between the petitioned-
for unit and an all-inclusive production and maintenance employee unit.
We note that the Petitioner expressed a willingness at hearing to repre-
sent an alternative unit including some non-welder employees if the
petitioned-for unit was found inappropriate.
MEMBERS PEARCE AND MCFERRAN, dissenting.
It is a foundational principle of United States labor law
that, when workers are seeking to organize and select a
collective-bargaining representative, and have petitioned
the Board to direct an election to that end, the role of the
Board in overseeing this process should be conducted
with the paramount goal of ensuring that employees have
“the fullest freedom in exercising the rights guaranteed
by” the Act. Thus, as numerous courts of appeals have
acknowledged, the “initiative in selecting an appropriate
unit [for bargaining] resides with the employees.” FedEx
Freight, Inc. v. NLRB, 816 F.3d 515, 523 (8th Cir. 2016),
quoting American Hospital Assn. v. NLRB, 499 U.S. 606,
610 (1991). When workers seeking a representative have
selected a bargaining unit in which they seek to organize,
the role of the Board in reviewing that selection is to
determine whether the selected unit is an appropriate one
under the statute not the unit the Board would prefer, or
the unit the employer would prefer. Part of ensuring
workers the “fullest freedom” in exercising their right to
organize is acknowledging that they can, and should—
within the reasonable boundaries that the statute deline-
ates—be able to associate with the coworkers with whom
they determine that they share common goals and inter-
ests.
With these principles in mind, this case should present
no difficult issues for the Board. The Union has filed a
petition to represent a bargaining unit of 102 welders at
an advanced manufacturing plant in the Portland, Oregon
area. The welders are a group of highly-skilled, highly-
paid employees performing a distinct function. These
workers have gone through specialized training and certi-
fications unique to their positions. They do not signifi-
cantly interchange with other employees, but instead
perform distinct work that no other employees are quali-
fied to do. They are readily identifiable as a group and
represent two clearly delineated job classifications within
the Employer’s organizational structure. The 102 work-
ers in this unit would constitute a significantly larger-
than-average bargaining unit when compared to other
recently certified units.
Despite these largely uncontested facts, the Employer
objected to the proposed unit, claiming that the only ap-
propriate unit in which these workers should be able to
choose a representative would have to include all 2,565
employees who work in production and maintenance at
the petitioned-for facilities. The Regional Director cor-
rectly rejected the Employer’s contention, and directed
an election among the welders. The workers voted 54 to
38 for the Union, and the Employer sought review of the
Regional Director’s decision with the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The Regional Director’s decision was unquestionably
correct—these 102 workers clearly share a community of
interest under any standard ever applied by the Board.1
Nonetheless, the majority nullifies the Direction of Elec-
tion for the unit of welders and orders the Regional Di-
rector to reconsider, under more favorable terms, the
Employer’s argument that welders should not be able to
bargain collectively unless they can win sufficient sup-
port from all 2565 production and maintenance employ-
ees. Instead of performing its statutory duty to affirm
these workers’ choice to organize in an appropriate unit
and allowing them to commence the collective-
bargaining process with their employer, the Board’s new-
ly-constituted majority seizes on this otherwise straight-
forward case as a jumping off point to overturn a stand-
ard that has been upheld by every one of the eight federal
appellate courts to consider it. The newly-constituted
Board majority makes sweeping and unwarranted chang-
es to the Board’s approach in assessing the appropriate-
ness of bargaining units when an employer asserts that
the unit sought by the petitioning union must include
additional employees. Without notice, full briefing, and
public participation, and in a case involving a manifestly
appropriate unit, the majority overturns Specialty
Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934 (2011). In its place, the majority adopts an
arbitrary new approach that will frustrate the National
Labor Relations Act’s policies of ensuring that employ-
ees enjoy “the fullest freedom in exercising” their right
to self-organization and of expeditiously resolving ques-
tions of representation. The majority’s new approach
will bog down the Board and the parties in an administra-
tive quagmire—a result that the majority apparently in-
tends.
The majority’s rejection of the Specialty Healthcare
framework reflects a failure to engage in the sort of rea-
soned decision-making demanded of the Board and other
administrative agencies. First, the majority follows a
flawed process. It seizes on a case that does not fairly
present the issues that the majority decides—including,
most obviously, the resurrection of a standard once ap-
plied only in non-acute healthcare facilities (a far cry
from the workplace involved here). And, in a sharp
break with established practice, the majority completely
excludes the public from participating in this case involv-
ing the reversal of significant Board precedent.
Second, in discarding the Board’s judicially-approved
approach, the majority relies on arguments that have

1 Indeed, welders-only units in this exact industry have been ap-
proved by the Board in the past. See, e.g., Mallinckrodt Chemical
Works, 162 NLRB 387 (1966).
been specifically rejected by the federal courts—
including the remarkable assertion that the Specialty
Healthcare framework is contrary to the National Labor
Relations Act. The majority mistakenly insists that the
Board cannot retain Specialty Healthcare and then
adopts a new standard that is inferior to Specialty
Healthcare in every important respect, including con-
sistency with the statute.
As reflected by its favorable reception in the federal
courts, the Specialty Healthcare framework—itself based
on an earlier decision of the U.S. Court of Appeals for
the District of Columbia Circuit—represented a major
improvement to the Board’s approach in this area. It
brought greater clarity and predictability to unit determi-
nations, while vindicating the goals of federal labor
law. There is simply no justifiable reason—certainly not
a change in the Board’s membership alone—to reverse
course and abandon a doctrine that has been so widely
accepted and praised. For the reasons that follow, we
dissent.
I.
Before addressing the serious shortcomings of the ma-
jority’s decision, we marvel at the majority’s hypocrisy
in denying briefing on such a critical issue.2 A key con-
tention of today’s majority decision is that the Board’s
Specialty Healthcare framework allegedly provides too
little process by the Board in examining petitioned-for
units. Yet, that professed care and concern for process is
wholly absent from the majority’s consideration of
whether and how to reverse Specialty Healthcare. The
majority not only breaks with the Board’s tradition of
inviting amicus briefing in cases such as this one where
the Board is considering reversing significant precedent,
but it fails to even grant the parties their traditional op-
portunity to brief the issue following the Board’s grant of
review. The choice to issue such a momentous deci-
sion—fundamentally changing the Board’s unit determi-
nation process—without allowing any additional input is
completely inconsistent with the Board’s practices, and
with principles of reasoned decisionmaking. Instead, the
majority has undertaken a dramatic overhaul of the
Board’s jurisprudence through a process carefully calcu-
lated to avoid public input.
Until today, inviting briefing over whether to reverse
precedent in the representation-case context—as the
Board did in Specialty Healthcare itself3—has been a

2 Member Pearce and Member McFerran voted to issue a notice and
invitation to file briefs, but the majority disagreed.
3 357 NLRB at 934, citing Specialty Health Care & Rehabilitation
Center of Mobile, 356 NLRB 289 (2010) (notice and invitation to file
briefs). The notice was issued on December 22, 2010, and the Board’s
decision issued on August 26, 2011 – reflecting careful consideration of
PCC STRUCTURALS, INC. 15
Board norm. Indeed, as we clarify in dissent to Boeing—
another decision flipping longstanding precedent rushed
out without public input—it has become the Board’s rou-
tine practice to solicit and accept amicus briefing in sig-
nificant cases.4 In the representation-case context specif-
ically, over the past decade the Board has consistently
invited amicus briefing whenever it is contemplating
reversing precedent.5 (None of the cases cited by the

the issues decided and the arguments presented by the parties and the
public.
The majority acknowledges, as it must, that the Specialty Health
Care Board invited briefing—but implies that the public did not, in
fact, have advance notice of the ultimate scope of the Board’s decision
because the notice “focused primarily on the standard for determining
appropriate units in nursing homes and other nonacute healthcare facili-
ties.” But the notice and invitation specifically invited the public to
address two questions that made it plain that the Board was contemplat-
ing a change in appropriate-unit jurisprudence generally:
(7) Where there is no history of collective bargaining, should the
Board hold that a unit of all employees performing the same job at a
single facility is presumptively appropriate in nonacute healthcare fa-
cilities[?] Should such a unit be presumptively appropriate as a gen-
eral matter[?]
(8) Should the Board find a proposed unit appropriate if, as found in
American Cyanamid Co., 131 NLRB 909, 910 (1961) [a case outside
the nonacute healthcare industry], the employees in the proposed unit
are “readily identifiable as a group whose similarity of function and
skills create a community of interest”[?]
356 NLRB at 290 (emphasis added). Notably, a dissenting member
objected specifically to the scope of the questions on which briefing
was invited, arguing that the case involved only a nonacute healthcare
facility and that a broader decision would be inappropriate. Id. at 293-
294 (dissent of Member Hayes). The majority responded, defending
the breadth of the questions it had posed. Id. at 291.
4 The Boeing Company, 365 NLRB No. 154, slip op. at 31–33
(2017) (Member McFerran, dissenting in part).
5 See, e.g., Columbia University, 364 NLRB No. 90 (2016) (whether
the Board should modify or overrule its decision in Brown University,
342 NLRB 483 (2004), in which it held that graduate assistants who
perform services at a university in connection with their studies are not
statutory employees under the National Labor Relations Act); Miller &
Anderson, Inc., 364 NLRB No. 39 (2016) (whether the Board should
adhere to its decision in Oakwood Care Center, 343 NLRB 659 (2004),
which disallowed inclusion of solely employed employees and jointly
employed employees in the same unit absent consent of the employers,
and if not, whether the Board should return to the holding of M. B.
Sturgis, Inc., 331 NLRB 1298 (2000), which permits the inclusion of
both solely and jointly employed employees in the same unit without
the consent of the employers); BFI Newby Island Recyclery, 362 NLRB
No. 186 (2015) (whether the Board should adhere to its existing joint
employer standard as articulated in TLI, Inc., 271 NLRB 798 (1984),
enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation,
269 NLRB 324 (1984), or adopt a new standard); Purple Communica-
tions, Inc., 361 NLRB 1050 (2014) (whether the Board should sustain
an election objection and overrule its decision in Register Guard, 351
NLRB 1110 (2007), enfd. in relevant part and remanded sub nom.
Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), and adopt a
rule that employees who are permitted to use their employer’s email for
work purposes have the right to use it for Sec. 7 activity, subject only to
the need to maintain production and discipline); New York University,
Case 02–RC–023481, Notice and Invitation to File Briefs (filed June
majority diminish the fact that inviting briefs has become
an established Board norm—and the majority tellingly
cites no recent case in which the Board refused to seek
briefing over objections from a member.6) It has also

22, 2012), available at https://www.nlrb.gov/sites/default/files/attach
ments/basic-page/node-3252/ntc_02-rc-23481_nyu_and_polytechnic_
notice___invitation.pdf (whether the Board should modify or overrule
its decision in Brown University, 342 NLRB 483 (2004), in which it
held that graduate assistants who perform services at a university in
connection with their studies are not statutory employees under the
NLRA); UGL-UNICCO Service Co., 357 NLRB 801 (2011) (whether
the Board should modify or overrule its decision in M.V. Transporta-
tion, 337 NLRB 770 (2002), concerning the bargaining obligations of a
successor employer with an incumbent union); Lamons Gasket Co., 357
NLRB 739 (2011) (whether the Board should reconsider its decision in
Dana Corp., 351 NLRB 434 (2007), concerning whether, and how
long, employees and other unions should have to file for an election
following an employer’s voluntary recognition of a union); Dana
Corp., 351 NLRB 434 (2007) (whether the Board should modify its
recognition bar doctrine as articulated in Keller Plastics Eastern, Inc.,
157 NLRB 583 (1966), Smith’s Food & Drug Centers, 320 NLRB 844
(1996), and Seattle Mariners, 335 NLRB 563 (2001)).
Indeed, the Board has invited amicus briefing even on representation
cases which merely raise unusual jurisdictional issues. See, e.g., Tem-
ple University Hospital Inc., Case 04–RC–162716, Notice and Invita-
tion to File Briefs (filed Dec. 29, 2016), available at
https://apps.nlrb.gov/link/document.aspx/ 09031d45822fb922 (whether
the Board should exercise its discretion to decline jurisdiction over the
employer and extend comity to a unit certified by the Pennsylvania
Labor Relations Board); Chicago Mathematics and Science Academy
Charter School, Inc., Case 13–RM–001768, Notice and Invitation to
File Briefs (filed January 10, 2011), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/chicago_mathematics_brief.pdf (whether an Illinois charter
school should fall under the jurisdiction of the NLRB or the Illinois
Educational Labor Relations Board); Firstline Transportation Security,
347 NLRB 447 (2006) (whether the Board should assert jurisdiction
over a private company contracting with the Transportation Security
Administration for passenger and baggage screening).
6 The majority asserts that there are “numerous” cases where the
Board “has freely overruled or disregarded established precedent . . .
without supplemental briefing.” But the six decisions the majority cites
are easily distinguishable from this one.
None of those cases—E. I. du Pont de Nemours, 364 NLRB No. 113
(2016); Graymont PA, Inc., 364 NLRB No. 37 (2016); Lincoln Luther-
an of Racine, 362 NLRB No. 188 (2015); Loomis Armored U.S., Inc.,
364 NLRB No. 23 (2016); Pressroom Cleaners, 361 NLRB 643
(2014); and Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151
(2014—was a representation case involving the wholesale reconsidera-
tion of the standard governing one of the Agency’s core statutory func-
tions: to determine an appropriate unit for bargaining. Moreover, in
none of these cases did the Board reach out to decide an issue that was
not even presented in the case; here, the majority resurrects the empiri-
cal community-of-interest standard for nonacute healthcare facilities,
which the Employer plainly is not, absent any relevant request or brief-
ing.
Additionally, in Loomis and Lincoln Lutheran, amicus briefs were
actually filed requesting, respectively, that the Board reverse or adhere
to extant Board precedent.
Further, Du Pont and Lincoln Lutheran were the culmination of
long-running discussions of the precedent they ultimately overruled. In
Du Pont, the Board accepted a remand from the United States Court of
Appeals for the District of Columbia Circuit for the express purpose of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
been the Board’s typical practice in representation cases,
to decide first whether to grant review, and if review is
granted, to then allow more extensive briefing by the
parties on the issues on which the Board grants review.
See Board’s Rules and Regulations Section 102.67(c)-(i).
But here, the majority grants review and reverses prece-
dent in one fell swoop, without even providing the par-
ties an opportunity to file briefs on whether and how to
change the applicable legal standard. As a consequence,
the sum total of briefing to the Board on whether Spe-
cialty Healthcare should be overruled, amounts to less
than 10 pages of the Employer’s brief requesting Board
review and virtually no input from the petitioning Union
on the issue.
The majority then decides an issue obviously not pre-
sented in this case (albeit addressed in Specialty
Healthcare): the standard for determining an appropriate
bargaining unit in nonacute health care facilities, such as
nursing homes. In Specialty Healthcare, the Board—
overruling Park Manor Care Center, 305 NLRB 872
(1991)—held that traditional community-of-interest con-
siderations would apply in such settings (as in other in-
dustries) and rejected the application of the special test
that Park Manor had crafted solely for nonacute health
care facilities, the so-called “pragmatic or empirical
community of interests” approach. The Specialty
Healthcare Board correctly described the Park Manor
approach as “both confusing and misguided,” explaining
that it mistakenly focused on the outdated and inapplica-
ble rulemaking record leading to the Board’s 1989
Health Care Rule, which was limited to acute care facili-
ties. 357 NLRB at 939. Today, in a case involving sole-
ly welders in the aerospace industry, the majority resur-
rects the Park Manor approach—with no notice to the
public, no briefing, and no evidentiary record. The ma-
jority’s approach is not legitimate adjudication, but de
facto rulemaking without the legally-required public par-
ticipation. An administrative agency like the Board
“must examine the relevant data and articulate a satisfac-
tory explanation for its action including a ‘rational con-
nection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm
Mutual Auto Insurance Co., 463 U.S. 29, 43 (1983),

deciding between two conflicting branches of precedent. See E. I. du
Pont de Nemours and Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012).
Lincoln Lutheran, in turn, was the culmination of a 15-year dialogue
with the United States Court of Appeals for the Ninth Circuit about
Bethlehem Steel. See WKYC-TV, Inc., 359 NLRB 286, 286 (2012)
(discussing history).
Finally, as already pointed out, in none of these cases did the Board
refuse to request briefing over the objection of one or more Board
members.
These six cases thus stand in sharp relief from the present case.
quoting Burlington Truck Lines v. United States, 371
U.S. 156 (1962). But in resurrecting Park Manor, the
majority has examined no relevant data, articulated no
satisfactory explanation, and established no rational con-
nection between the facts found in this adjudication and
the choice to return to the “empirical or pragmatic com-
munity of interests” approach.
There is no rational reason for the majority to engage
in such unprincipled corner-cutting. No court has so
much as questioned the validity of Specialty Healthcare.
And there is no justification for violating Board norms to
rush out a decision now. A new Board majority would
have had ample opportunity to reconsider Specialty
Healthcare without acting contrary to the Board’s proce-
dural norms and principles of reasoned decisionmaking.
In a case such as this—involving dramatic changes to
rules of general applicability governing one of the Agen-
cy’s core functions—it is unconscionable for the Board
to refuse to solicit briefs from interested parties.7 It is a
dereliction of the duty we owe to the parties and the la-
bor-management community. In Specialty Healthcare,
which today’s decision overrules, the Board issued an
invitation to file briefs, and then received at least a dozen
substantive briefs filed by the Board’s stakeholders. The
Board received briefs from the Chamber of Commerce,
the Coalition for a Democratic Workplace, the American
Hospital Association, the American Healthcare Associa-
tion, the Retail Industry Leaders Association, the Rank-
ing Member of the Senate Health, Education, Labor, and
Pension Committee and colleagues, the AFL–CIO, the
Service Employees International Union, the International
Union of Operating Engineers, the United Steelworkers,
and others. The Board granted extensions of time for
briefing and allowed for supplemental briefs to respond
to issues raised in the first round of briefing. But here,
the Majority rejected our express request to solicit input
from our stakeholders who will be affected by the
Board’s decision. Does the majority think that the public
has nothing to add to our deliberations?
The Supreme Court has made clear that Board adjudi-
cation is subject to the Administrative Procedure Act’s
(APA) requirement that an agency engage in “reasoned
decisionmaking.” Allentown Mack Sales & Service v.

7 The view expressed by Member Pearce that it is appropriate to
provide for public briefing on the subject of reversing the Specialty
Healthcare legal standard applicable to a massive swath of the Agen-
cy’s caseload, ironically finds support in his new colleagues’ recent
testimony during their Senate confirmation process. He agrees with
and embraces their sentiments on the importance of public input to the
Board’s decisional process. In that regard, one of his colleagues
pledged to “seek public input where appropriate,” and described case
adjudication as “a long process, but when it’s done right it results in
good decisions.”
PCC STRUCTURALS, INC. 17
NLRB, 522 U.S. 359, 374 (1998). “Not only must an
agency’s decreed result be within the scope of its lawful
authority, but the process by which it reaches that result
must be logical and rational.” Id. To be sure, the “Board
is not precluded from announcing new principles in an
adjudicative proceeding and . . . the choice between
rulemaking and adjudication lies in the first instance
within the Board’s discretion.” NLRB v. Bell Aerospace
Co., 416 U.S. 267, 294 (1974). But the Supreme Court
has left open the possibility that in some “situations . . .
the Board’s reliance on adjudication would amount to an
abuse of discretion or a violation of the Act.” Id. This
case, along with some others issued this month by the
majority, are clear examples of abuse of discretion.
Without good reason, the majority has failed to “solicit[ ]
the informed views of those affected in industry and la-
bor before embarking on a new course” and has made no
effort to acquire the “relevant information necessary to
mature and fair consideration of the issues.” Id. at 295.
The majority’s deficient process, predictably, has led to a
manifestly deficient decision.
II.
In Specialty Healthcare &Rehabilitation Center of
Mobile (Specialty Healthcare), supra, affd. sub nom.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d
552 (6th Cir. 2013), the Board reviewed and clarified its
standards for making unit determinations when a repre-
sentation petition is filed and the parties cannot agree on
an appropriate unit in which to conduct an election to
determine whether the employees wish to be represented
for purposes of collective bargaining with their employ-
er. FedEx Freight, Inc., 816 F.3d at 522. The Board
reiterated that its initial inquiry remains the same: to ex-
amine the petitioned-for unit to determine if it is appro-
priate. Id. at 522, citing Specialty Healthcare, 357
NLRB at 941.
The Board articulated a two-step test for determining
whether the petitioned-for unit is an appropriate unit.
NLRB v. FedEx Freight, Inc., 832 F.3d 432, 440 (3d Cir.
2016). In the first step, the Board evaluates whether the
petitioned-for employees are readily identifiable as a
group and applies the traditional criteria to analyze
whether the petitioned-for employees share a community
of interest. This traditional community-of-interest analy-
sis examines:
[W]hether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer's other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.
Specialty Healthcare, 357 NLRB at 942–943, 945 (quoting
United Operations, Inc., 338 NLRB 123, 123 (2002)).
The Board then clarified that, in cases in which a
party contends that a petitioned-for unit containing em-
ployees readily identifiable as a group who share a
community of interest is nevertheless inappropriate
because it does not contain additional employees, the
burden is on the party so contending to demonstrate
that the excluded employees share an overwhelming
community of interest with the included employees.
Specialty Healthcare, 357 NLRB at 934. By clarifying
the standard to be used where a party contends that a
petitioned-for unit is not appropriate because it does not
contain additional employees, Specialty Healthcare
serves the statutory purpose of assuring to employees the
fullest freedom in exercising the rights guaranteed by the
Act, reduces unnecessary litigation and advances the
Act’s policy of expeditiously resolving questions con-
cerning representation, permits employers to order their
operations with a view toward productive collective
bargaining should employees choose to be represented,
and leads to more predictable and consistent results.
Specialty Healthcare, 357 NLRB at 945–946, enfd. in
pertinent part, Kindred Nursing Centers East, LLC v.
NLRB, 727 F.3d at 561, 563.
To date, employers have challenged the validity of
Specialty Healthcare in eight different circuits, raising
arguments echoed by today’s majority. Nevertheless,
every one of those circuits has upheld Specialty
Healthcare. See Kindred Nursing Centers East, LLC v.
NLRB, 727 F.3d 552 (6th Cir. 2013); FedEx Freight, Inc.
v. NLRB, 816 F.3d 515 (8th Cir. 2016); Nestle Dreyer’s
Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016);
Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016) ,
cert. denied, 137 S.Ct. 2265 (2017); NLRB v. FedEx
Freight, Inc., 832 F.3d 432 (3d Cir. 2016); FedEx
Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016);
Constellation Brands, U.S. Operations, Inc. v. NLRB,
842 F.3d 784 (2d Cir. 2016); Rhino Northwest, LLC v.
NLRB, 867 F.3d 95 (D.C. Cir. 2017).
But, apparently, eight is not enough for the majority.
Instead, the majority today overturns Specialty
Healthcare, and purports to return to the status quo ante.
But that is not what the majority does. Instead, the ma-
jority adopts a radical new approach that purportedly
focuses on the Section 7 rights of employees outside the
petitioned-for unit. As we explain below, this new ap-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
proach will frustrate the Act’s policies and entangle the
Board and the parties in a process that encourages unnec-
essary litigation and undermines the Act’s goal of expe-
ditiously resolving questions concerning representation.
III.
The majority offers few factual and legal arguments in
support of its decision. Most prominent is the unfounded
assertion that the test articulated in Specialty Healthcare
is somehow contrary to the National Labor Relations
Act.
First, the majority contends that Specialty Healthcare
contravenes Section 9(b)’s requirement that the Board
decide “in each case” the appropriate unit in which to
conduct an election. Citing various language that Con-
gress considered in enacting the Wagner and the Taft
Hartley Acts, the majority claims that Section 9(b) calls
for the Board to make a more robust unit determination
than Specialty Healthcare allows.
However, the majority’s claims of statutory infirmity
fail as they ignore authoritative Supreme Court precedent
and misstate what Specialty Healthcare actually pro-
vides. The Supreme Court has already reviewed Section
9(b)’s “sparse legislative history” and construed the stat-
utory language, and has concluded that all Section 9(b)
requires in relevant part is that when there is a dispute
over the unit in which to conduct the election, the Board
must resolve it. American Hospital Assn. v. NLRB, 499
U.S. at 611, 613. It certainly does not preclude the
Board from evaluating the appropriateness of a unit pur-
suant to broadly applicable principles. Indeed, the Court
has expressly stated that the “requirement that the Board
exercise its discretion in every disputed case cannot fair-
ly or logically be read to command the Board to exercise
standardless discretion in each case.” Id. at 612.
Consistent with this guidance, Specialty Healthcare
requires the Board to exercise its discretion to determine
whether the petitioned-for unit is appropriate. Thus, un-
der Specialty Healthcare, the Board cannot direct an
election in a petitioned-for unit when that unit is disputed
by an employer without first concluding, among other
things, that (1) the petitioned-for employees are readily
identifiable as a group; (2) the petitioned-for employees
constitute an appropriate unit under the traditional com-
munity of interest test; and (3) the employer fails to show
that the employees it seeks to add to the unit share an
overwhelming community of interest with the petitioned-
for employees. See Rhino Northwest, LLC v. NLRB, 867
F.3d at 101 (rejecting employer’s claim that the Specialty
Healthcare framework has caused the Board to abdicate
its statutory duty to decide the appropriateness of a pro-
posed unit “in each case.”). The majority cannot plausi-
bly argue that the Board is not deciding in each case
whether the unit is appropriate.
The majority also claims that Specialty Healthcare
contravenes Section 9(c)(5) by making the extent of or-
ganizing controlling. The majority appears to reason that
this is so because, in its view, the petitioned-for unit will
always be deemed appropriate under Specialty
Healthcare, except in the “rare” case where the employer
can demonstrate that additional employees outside the
unit share an overwhelming community of interest with
the petitioned-for employees.
However, the courts have uniformly rejected the ma-
jority’s position. Section 9(c)(5) of the Act provides that
“[i]n determining whether a unit is appropriate for the
purposes specified in subsection (b) the extent to which
the employees have organized shall not be controlling.”
The Supreme Court has construed this language to mean
that although “Congress intended to overrule Board deci-
sions where the unit determined could only be supported
on the basis of the extent of organization, . . . the provi-
sion was not intended to prohibit the Board from consider-
ing the extent of organization as one factor, though not
the controlling factor, in its unit determination.” NLRB
v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–
442 (1965). In other words, as the Board noted in Spe-
cialty Healthcare, “the Board cannot stop with the obser-
vation that the petitioner proposed the unit, but must pro-
ceed to determine, based on additional grounds (while
still taking into account the petitioner’s preference), that
the proposed unit is an appropriate unit.” Specialty
Healthcare, 357 NLRB at 942.
Specialty Healthcare plainly does not permit the Board
to find a petitioned-for unit appropriate based only on the
extent of organization. Rather, under Specialty
Healthcare, the Board must apply the multifactor, tradi-
tional community-of-interest test to determine whether
the petitioned-for employees constitute an appropriate
unit—aside from the fact that the union has organized the
unit. See Kindred Nursing Centers East, LLC v. NLRB,
727 F.3d at 564–565 (Specialty Healthcare does “not
assume” that the petitioned-for unit is appropriate, but
instead mandates application of the community-of-
interest test to find that there are substantial factors es-
tablishing that the petitioned-for unit is appropriate aside
from the fact that the union has organized it). The Board
does not apply the overwhelming community-of-interest
standard until after it has determined that the petitioned-
for employees are readily identifiable as a group and
share a community of interest under the Board’s tradi-
tional test. See Rhino Northwest, LLC v. NLRB, 867
F.3d at 101 (Specialty Healthcare does not give control-
ling weight to the extent of employees’ organization be-
PCC STRUCTURALS, INC. 19
cause it does not apply the overwhelming community of
interest standard until after the proposed unit has been
shown to be prima facie appropriate under the Board’s
traditional community of interest analysis). Accord:
Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d at
495–497.8
Nor does Specialty Healthcare impose a “next-to-
impossible burden” on nonpetitioning parties. The ma-
jority’s claim to that effect is empirically false, as the
courts have recognized. See Rhino Northwest, LLC v.
NLRB, 867 F.3d at 101 (both before and after Specialty
Healthcare, the Board and its Regional Directors have
rejected proposed units); NLRB v. FedEx Freight, Inc.,
832 F.3d at 444 (“the Board has been clear that it will not
approve ‘fractured’ units or arbitrary segments of em-
ployees.”); FedEx Freight, Inc. v. NLRB, 816 F.3d at
525–526 (same). Thus, there are numerous examples of
the Board’s Regional Directors rejecting units proposed
by petitioners.9 The Board has also rejected a number of
proposed units in published cases.10

8 The majority is also simply wrong in claiming that Specialty
Healthcare deems the petitioned-for unit “controlling . . . even when a
broader unit is clearly compelled by” industry-specific guidelines or
standards, in contravention of Specialty Healthcare’s pledge that it was
not intended to disturb rules developed by the Board regarding particu-
lar industries. Then-Member Miscimarra made precisely the same
claim in Macy’s, Inc., 361 NLRB 12, 40–42 (2014), and the Fifth Cir-
cuit squarely rejected it. See Macy’s Inc. v. NLRB, 824 F.3d at 570
(“even if a store-wide unit were presumptively appropriate in the retail
industry—a contention to which the Board strenuously objects . . .—the
application of Specialty Healthcare to the retail context would not mark
a deviation from Board precedent” because “‘the suggestion that there
is only one set of appropriate units in an industry runs counter to the
statutory language and the main corpus of [Board] jurisprudence, which
holds that the Board need find only that the proposed unit is an appro-
priate unit, rather than the most appropriate unit, and that there may be
multiple sets of appropriate units in any workplace.’”) (citation omit-
ted). Thus, even where the Board has declared certain units to be pre-
sumptively appropriate, a union is not required to petition for one of
those units. See Macy’s, Inc., 361 NLRB at 27–28 fn.65. And, as
shown, when a union petitions for a unit that is not presumptively ap-
propriate, the Board does not assume that the petitioned-for unit is
appropriate, but rather applies the traditional community-of-interest test
at step one to determine if the petitioned-for unit is appropriate. Ac-
cordingly, the Board in no way deems the petitioned-for unit “control-
ling.”
9 For example, Regional Directors have frequently concluded that
nonpetitioning parties had met their burden of showing that additional
employees share an overwhelming community of interest with peti-
tioned-for employees. See, e.g., Benteler Automotive Corp., 25-RC-
135839 (October 28, 2014); Dyno Nobel, Inc., 19-RC-075260 (March
29, 2012); Golden State Overnight Delivery Service, 31-RC-185685
(Nov 4, 2016); Jawanio, NJ, 22–RC–084183(Aug. 9, 2012); PHS/MWA
Aviation Services (WENCOR), 21–RC–184349 (Oct. 20, 2016); Weyer-
houser NR Company, 06–RC–079980, (June 11, 2012); Alternative
Mechanical, LLC, 19–RC–070030 (Jan. 11, 2012); NYC 2-Way Inter-
national, Ltd., 29–RC–063657 (Nov. 17); GKN Aerospace Monitor,
Inc. 29–RC–062580 (Mar. 9, 2012); General Dynamics Land Systems,
19–RC–076743 (May 31, 2012); General Electric Co., 14–RC–073765
Thus, contrary to the majority’s unsupported asser-
tions, the outcome of a unit determination under Special-
ty Healthcare is neither foreordained nor coextensive
with the extent of organizing. Instead, the courts have
uniformly found that the Board’s approach correctly pro-
vides an individualized inquiry into the appropriateness
of the unit, consistent with what the Act requires.
IV.
The majority also argues that Specialty Healthcare
“constituted a[] departure from the standards that have
long governed the Board’s appropriate bargaining-unit
determinations”. This argument—like the majority’s
statutory claims—has been uniformly rejected by every
reviewing court to consider the question.
Repeating then-Member Miscimarra’s dissent in Ma-
cy’s Inc., 361 NLRB 12, 32–44 (2014), the majority
claims that Specialty Healthcare departs from precedent
because it permits the Board to narrowly focus the ap-
propriate unit analysis on interests that employees in the
petitioned-for unit share while discounting—or eliminat-
ing altogether—any assessment of whether those shared
interests are sufficiently distinct from the interests of the
excluded employees to warrant a finding that the peti-
tioned-for unit is appropriate. But Specialty
Healthcare’s community of interest analysis at step one
did not just examine the interests of the petitioned-for
CNAs in isolation; it contrasted them with those of other
employees. See Specialty Healthcare, 357 NLRB at

(Mar. 12, 2012); Allied Blending & Ingredient, Inc., 25–RC–155188
(July 21, 2015); Loyola Marymount University, 31–RC–118850 (Jan.
15, 2014); Lotz Trucking, 25–RC–165041 (Dec 24, 2015); Faurecia
Emissions Control Technologies USA, LLC, 09–RC–139624 (Nov. 24,
2014); MHM Services, 04–RC–100225 (April 22, 2013) ; Keystone
Automotive Industries, 32–RC–137319 (Jan. 23, 2015); First Student,
Inc., 21–RC–089564 (Oct. 24, 2012); BFI Waste Services LLC, 15–
RC–-165961 (Jan. 6, 2016); Woods Maintenance Services 31–RC–
132303 (Nov. 7, 2014); Becker College, 01–RC–081265 (June 22,
2012); Ritz-Carlton Hotel Co. 20–RC–187862 (December 6, 2016);
Down to Earth Landscaping, Inc., 04–RC–076495 (April 6, 2012);
IKEA US East, LLC, 01–RC–176529 (June 16, 2016); Curtis Bay En-
ergy, Inc., 05–RC–137563 (Oct. 27, 2014); United Way Community
Services, 27–RC–169883 (Mar. 17, 2016).
10 See, e.g., Odwalla, Inc., 357 NLRB 1608 (2011) (rejecting peti-
tioned-for unit of route sales drivers, relief drivers, warehouse associ-
ates, and cooler technicians because merchandisers shared an over-
whelming community of interest with the petitioned-for employees);
Bergdorf Goodman, 361 NLRB No. 11 (2014) (rejecting petitioned-for
unit of women's shoe sale associates because they do not share a com-
munity of interest); K&N Engineering, Inc., 365 NLRB No. 141 (2017)
(in ruling on determinative challenges, Board reversed RD and rejected
petitioner’s claim that maintenance techs should not be included in
stipulated unit absent a showing that they share an overwhelming
community of interest with employees in the stipulated unit; Board
found the stipulated unit was inappropriate in the first instance, and
therefore it need only be shown that the maintenance techs shared a
community of interest to merit inclusion).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
942-943 (noting the CNAs’ distinct training, certifica-
tion, supervision, uniforms, pay rates, work duties, shifts
and work areas).11
It is thus not surprising that the courts have uniformly
rejected the majority’s contention. As the Eighth Circuit
explained in affirming Specialty Healthcare, Specialty
Healthcare’s test “does in fact compare the interests and
characteristics of the workers in the proposed unit with
those of other workers . . . [ and] . . .[t]he precedents re-
lied on by the Board in Specialty Healthcare make clear
that the Board does not look at the proposed unit in isola-
tion.” FedEx Freight, Inc. v. NLRB, 816 F.3d at 523.
Similarly, the Fifth Circuit found the precise claim “un-
convincing,” noting that the Board’s community-of-
interest test articulated in Specialty Healthcare “does not
look only at commonalities within the petitioned-for
unit,” and “conform[s] to established precedent.” Macy’s
Inc. v NLRB, 824 F.3d at 568–569. See also NLRB v.
FedEx Freight, Inc., 832 F.3d at 440 (holding that Spe-
cialty Healthcare’s initial community-of-interest test is
“in line with Board precedent.”); Constellation Brands,
U.S. Operations, Inc. v. NLRB, 842 F.3d at 792 (“Step
one of Specialty Healthcare expressly requires the RD to
evaluate several factors relevant to ‘whether the interests
of the group sought were sufficiently distinct from those
of other employees to warrant the establishment of a sep-
arate unit.’”) (citation omitted).12

11 The majority also notes that Specialty Healthcare overruled Park
Manor Care Center’s test for determining appropriate bargaining units
in non-acute healthcare facilities. That is true but irrelevant, for this
case does not involve a nonacute healthcare facility and therefore this
case would not have been governed by Park Manor even had the Board
never decided Specialty Healthcare.
12 The majority claims that there have been instances where the Spe-
cialty Healthcare test has been misapplied. Even assuming that is true,
it does not warrant throwing the baby out with the bath water and over-
turning it. Indeed, in Constellation Brands, the Second Circuit upheld
the Specialty Healthcare test, notwithstanding that it found that the test
had been misapplied in that case. See Constellation Brands, U.S. Op-
erations, Inc. v. NLRB, 842 F.3d at 787. See also Nestle Dreyer’s Ice
Cream Co. v. NLRB, 821 F.3d at 499 (“We need not . . . hold that an
application of the Specialty Healthcare standard will never run afoul”
of the Act in order to uphold it). Parties who believe that the test has
been misapplied by a Regional Director may file a request for review
with the Board; and parties who believe that the Board has misapplied
the test—or failed to correct Regional Director misapplications—may
seek review in an appropriate court of appeals via the well-established
technical 8(a)(5) procedure. The majority distorts the holding of these
cases—that explicitly upheld the Specialty Healthcare analysis—to
support its decision to reverse Specialty Healthcare. The majority fails
to appreciate that the issue of whether the employees have a distinct
community of interest under the community-of-interest test in step one
of the Specialty Healthcare analysis does not answer the question of
whether the only appropriate unit includes employees who were not in
the petitioned-for unit, which is the question in step two. On that ques-
tion, the Board in Specialty Healthcare stated—and the circuit courts
have unanimously affirmed—that the relevant question is whether the
The majority claims that Specialty Healthcare consti-
tutes a departure from precedent for the additional reason
that it imposes on nonpetitioning parties (mostly em-
ployers) the new, heightened burden of proving that the
employees it seeks to add to the petitioned-for unit share
“an overwhelming community of interest” with the peti-
tioned-for employees before those employees will be
added to unit. However, as the Board explained in Spe-
cialty Healthcare, the Board and the courts had consist-
ently required a heightened showing from the party argu-
ing for the inclusion of additional employees in a unit
that satisfies the traditional community of interest test.
Specialty Healthcare, 357 NLRB at 944. Citing the D.C.
Circuit’s decision in Blue Man Vegas, LLC v. NLRB, 529
F.3d 417, 421 (2008), the Board noted “Although differ-
ent words have been used to describe this heightened
showing, in essence, a showing that the included and
excluded employees share an overwhelming community
of interest has been required.” Specialty Healthcare, 357
NLRB at 944.13
Not surprisingly therefore the courts have also unani-
mously rejected the claim, repeated by the majority to-
day, that the overwhelming community-of-interest test at

employer has established that the excluded employees share an over-
whelming community of interest. 357 NLRB 934,945, fn. 28. The
Board’s reason for allocating the burden as it did was because it is
consistent with the Board’s obligation to first consider whether the
petitioned-for unit is appropriate, it parallels the Board’s jurisprudence
when a unit is presumptively appropriate, and because the employer is
in full, and often near-exclusive, possession of the relevant evidence.
The majority’s decision eliminates that burden allocation, without
addressing the reasons for doing so discussed in Specialty Healthcare,
and replaces it with an amorphous inquiry into whether employees in
the petitioned-for unit share an unspecified level of community of
interest with the excluded employees.
We also note in passing that although the majority claims that the
Board denied the employer’s request for review of the Regional Direc-
tor’s decision to direct nine separate elections in Yale University, 365
NLRB No. 40 (2017), the Board in fact merely denied the employer’s
request for extraordinary relief (expedited review and a stay or im-
poundment of ballots). As the majority is well aware, the merits of the
Employer’s request for review remain pending before the Board.
13 Because the use of slightly varying verbal formulations to describe
the standard applicable in this recurring situation did not well serve the
Act’s purposes, the Board took the opportunity to clarify that when
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 appropri-
ate 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 employ-
ees in the larger unit share an overwhelming community of interest
with those in the petitioned-for unit. Specialty Healthcare, 357 NLRB at
945. The D.C. Circuit recently concluded that it was “fitting” for the
Board to do so. Rhino Northwest, LLC v. NLRB, 867 F.3d at 100.
PCC STRUCTURALS, INC. 21
step 2 constitutes a departure from precedent. Writing
for the Seventh Circuit, Judge Posner noted, ‘“over-
whelming community interest’ is not the invention of the
Specialty Healthcare case; one can find it in two 40–
year–old NLRB cases . . . . Moreover, ‘overwhelming’
appears to be treated by the NLRB as a synonym for ‘in-
appropriate, . . . for ‘truly inappropriate,’ . . . and for
‘clearly inappropriate—terms that pull the sting of
‘overwhelming.’” FedEx Freight, Inc. v. NLRB, 839
F.3d at 638. Similarly the Sixth Circuit concluded that it
is “just not so” that the overwhelming community of
interest standard represents a material change in the law.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d
at 561 (“The Board has used the overwhelming-
community-of-interest standard before, so its adoption in
Specialty Healthcare II is not new.”) And after conduct-
ing an independent review of the relevant precedent, the
D.C. Circuit recently stated that the “‘overwhelming
community of interest’ formulation . . . encapsulate[s]
decisions that, in our words, ‘conform[ed] to a consistent
analytic framework’”, leading the court to “join seven of
our sister circuits in concluding that Specialty Healthcare
worked no departure from prior Board decisions.” Rhino
Northwest, LLC v. NLRB, 867 F.3d at 100–101.14
V.
In lieu of Specialty Healthcare, the majority advocates
that when the parties cannot agree on the unit in which to
conduct an election, the Board should not focus on the
Section 7 rights of employees who seek to organize in
the petitioned-for unit, but must instead consider the
statutory interests of employees outside the unit, as ad-
vanced by the employer. In the majority’s view, in other
words, the statutory right of employees to seek union
representation, as a self-defined group, is contingent on
the imputed desires of employees outside the unit who
have expressed no view on representation at all—with
the employer serving as their self-appointed proxy. Of
course, the extent of employees’ freedom of association
(which, by definition, includes the freedom not to associ-
ate) is not a matter for employers to decide. As the Su-
preme Court has made clear, the Board is entitled to
“giv[e] a short leash to the employer as vindicator of its
employees’ organizational freedom.” Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996).

14 The Board’s decision in Specialty Healthcare has also been criti-
cized for facilitating a proliferation of micro-units that would wreak
havoc in the workplace. Like other criticisms of the decision, this has
been proven baseless, and the majority tellingly does not invoke this
canard to justify overturning Specialty Healthcare. Indeed, Specialty
Healthcare has not driven down the median size of bargaining units.
See www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/
median-size-bargaining-units-elections.
As we show below, (A) the majority’s approach is in-
consistent with the statute and will frustrate the Act’s
policies; (B) Specialty Healthcare does not impair the
Section 7 rights of employees outside the petitioned-for
unit; and (C) the majority’s approach will entangle the
Board and the parties in an administrative quagmire.
A.
The majority’s approach is plainly inconsistent with the
statute and will frustrate the Act’s policies. In Section 1
of the Act, Congress declared it to be the policy of the
United States to “protect[] the exercise by workers of full
freedom of association, self-organization, and designa-
tion of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of their
employment[.]” The first and central right set forth in
Section 7 of the Act is the employees’ “right to self-
organization.” As the Board has explained, “A key as-
pect of the [Section 7] right to ‘self-organization’ is the
right to draw the boundaries of that organization—to
choose whom to include and whom to exclude.” Special-
ty Healthcare, 357 NLRB at 941 fn. 18. The majority’s
approach flies in the face of Section 9(a)’s instruction that
representatives need be designated only by a majority of
employees in “a unit appropriate” for collective bargain-
ing, not in “the most appropriate” unit. The majority’s
approach breaches Section 9(b)’s command that the
Board’s unit determinations “assure to employees the
fullest freedom in exercising the rights guaranteed by” the
Act, i.e., that of self-organization and collective bargain-
ing.15 The majority ignores the Supreme Court’s authori-

15 Indeed, the legislative history of 9(b) shows that Congress used
the language “fullest freedom” to refer to the ability of employees to
organize in a unit with co-workers who share a community of interest
and that the Board should be limited in its discretion to find that only a
larger unit is appropriate. The Labor Management Relations Act
(LMRA or Taft-Hartley) of 1947 amended Sec. 9(b) of the NLRA to
include the relevant language—that the Board’s unit determination
decisions shall protect the fullest freedom of employees’ right to organ-
ize. The language originated with the draft legislation from the Senate
Committee on Labor and Welfare. The Committee report explains that
the purpose of the amendments to 9(b) was “to limit the Board’s discre-
tion in determining the kind of unit appropriate for collective bargain-
ing.” Senate Report No. 105 on S. 1126, reprinted in 1 NLRB, Legisla-
tive History of the Labor Management Relations Act, 1947 (LMRA
Hist.) 431 (1948). To effectuate that policy, the LMRA would amend
the NLRA to provide greater protection for professionals and craft units
to organize separately. In Congresses’ view, the Board’s protection of
the right to organize by subsets of employees had been inadequate.
Accordingly, the central rationale for the relevant statutory language
was to limit the Board’s discretion in finding less than employer-wide
units inappropriate. On the Senate floor, Senator Taft, the chief spon-
sor of the LMRA, stated that the purpose of the amendment to 9(b) was
to give “greater power to the craft unions to organize separately.” 2
LMRA History 1009 (1948). Therefore, the majority decision—
arguing that the Board must more thoroughly consider the interest of
excluded employees in order to protect all employees’ fullest free-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
tative interpretation of Section 9(c)(5) to the effect that
the Board may consider the extent of organization in mak-
ing unit determinations, so long as it is not the controlling
factor. And its approach fails to acknowledge that pursu-
ant to Section 9(c)(1), the unit described in the petition
“necessarily drives the Board’s unit determination.”
Overnite Transportation Co., 325 NLRB 612, 614 (1998).
It is because of the foregoing statutory language that
the Board and courts have long recognized that employ-
ees are not required to seek what the Board would con-
sider to be the most appropriate unit. See, e.g., NLRB v.
FedEx Freight, Inc., 832 F.3d at 439 (in upholding Spe-
cialty Healthcare, the Third Circuit notes that the “Su-
preme Court has held that section 9(a) ‘implies that the
initiative in selecting an appropriate unit resides with the
employees’ and that ‘employees may seek to organize ‘a
unit’ that is ‘appropriate’—not necessarily the single
most appropriate unit.’”); FedEx Freight, Inc. v. NLRB,
816 F.3d at 523 (noting the “‘longstanding principle’ of
unit determination under the community of interest test
that ‘the Board need only certify ‘an appropriate’ bar-
gaining unit, rather than ‘the most appropriate’ one’”)
(citations omitted). In fact, until today, the Board’s “de-
clared policy” was “to consider only whether the unit
requested is an appropriate one, even though it may not
be the optimum or most appropriate unit for collective
bargaining.” Overnite Transportation Co., 322 NLRB
723, 723 (1996); Black & Decker Mfg Co., 147 NLRB
825, 828 (1964). Even prior to Specialty Healthcare, it
was black letter law that once the Board determines that
the petitioned-for unit is appropriate, the Board’s inquiry
ends. See, e.g., Boeing Co., 337 NLRB 152, 153 (2001)
(“The Board’s procedure for determining an appropriate
unit under Section 9(b) is to examine first the petitioned-
for unit. If that unit is appropriate, then the inquiry into
the appropriate unit ends.”); Wheeling Island Gaming,
Inc., 355 NLRB 637, 637 fn. 2 (2010); Metropolitan Life
Insurance Co., 156 NLRB 1408, 1415 (1966) (“[T]here
is no reason to compel a labor organization to seek repre-
sentation in a larger unit than the one requested unless
the smaller requested unit is itself inappropriate.”). See
FedEx Freight, Inc. v. NLRB, 816 F.3d at 523 (“The
Board explained well before Specialty Healthcare that
‘[i]n deciding the appropriate unit, the Board first con-
siders the union’s petition and whether that unit is appro-
priate.’ If the Board concludes that the petitioned for
unit is ‘an appropriate unit,’ it has fulfilled the require-

dom—is in significant tension with the legislative history of the statuto-
ry language on which it purports to rely and subverts the basic princi-
ples underlying employees’ freedom of association.
ments of the Act and need not look to alternative units.”
(internal cites omitted)).
The majority’s approach stands well-settled principles
on their head. First, under the majority’s approach, even
if the petitioned-for unit is appropriate under the Act, the
Board may not direct an election in that unit if the Board
concludes that another unit would be more appropriate.
Until today, the Board had refused to do precisely that.
See Overnite Transportation Co., 322 NLRB at 725 (re-
quiring the Board to decide which is the best or most
appropriate unit “would stand on its head the statutory
concept of an appropriate unit. We do not believe that
Congress intended such an outcome, especially since
Congress set forth more than one appropriate unit in Sec-
tion 9(b).”) (emphasis in original); Montgomery Ward &
Co., Inc., 150 NLRB 598, 601 (1964) (“the issue here is
simply whether [the petitioned-for unit] is appropriate in
the circumstances of this case, and not whether another
unit . . . would also be appropriate, more appropriate, or
most appropriate.”). 16
Second, as previously discussed, the majority decision
disregards the Board’s decades-old policy, approved by
the Supreme Court, that the petitioner’s desire is always
a relevant consideration.17 Relatedly, the majority casts
aside extant Board law that, when a proposed unit de-
scribes employees readily identifiable as a group who
share a community of interest, “both the Board and
courts of appeals have necessarily required a heightened
showing to demonstrate that the proposed unit is never-
theless inappropriate because it does not include addi-
tional employees.” Specialty Healthcare, 357 NLRB at
944, citing Blue Man Vegas, LLC, v. NLRB, 529 F.3d at
421. The majority rejects this existing framework and
replaces it with an open-ended inquiry that provides no
standard for uniformly evaluating whether a petitioned-
for unit is appropriate and no guidance to employees
interested in bargaining collectively.18

16 And as explained below, by expanding the nature of the Board’s
unit inquiry, the majority’s approach clearly frustrates “the Act’s policy
of expeditiously resolving questions concerning representation.”
Northeastern University, 261 NLRB 1001, 1002 (1982).
17 See Marks Oxygen Co. of Alabama, 147 NLRB 228, 230 (1964).
See, e.g., Rhino Northwest LLC v. NLRB, 867 F.3d at 99–100; Mc-
Mor-Han Trucking Co., Inc., 166 NLRB 700, 701 (1967); E. H.
Koester Bakery Co., Inc., 136 NLRB 1006, 1012 (1962).
18 The majority claims that we greatly exaggerate the scope of to-
day’s ruling when, according to the majority, it is merely returning to
the pre-Specialty Healthcare analysis. But the majority’s assertion that
the Board will neither favor nor disfavor the petitioned-for unit is simp-
ly irreconcilable with cornerstone principles that have guided the
Board’s unit determination decisions for decades: that the desire of the
petitioner is always a relevant consideration and that there is a height-
ened showing required of a party arguing for the inclusion of additional
employees in a petitioned-for unit that satisfies the traditional commu-
PCC STRUCTURALS, INC. 23
The majority simply misunderstands that Congress
neither intended to maximize the Board’s free choice in
selecting the unit in which to conduct the election, nor
maximize the employer’s ability to manipulate the unit
sought in the petition. Rather, it was the intent of Con-
gress to facilitate employee free choice in this regard.19
Furthermore, the majority’s approach falls apart in
practical application. The facts of this case are a clear
illustration. As noted above, the petitioned-for unit in-
cludes 102 welders, who voted 54 to 38 to bargain collec-
tively with the Employer. But the Employer contends
that the only appropriate unit is all 2,565 of the produc-
tion employees. If the Employer is correct that, in order
to safeguard the fullest freedom of all employees in all the
possible unit configurations, the only appropriate unit is
all 2,565 production employees, the only way that the
welders can secure a representation election is if there is
an adequate showing of interest among that larger unit.
This would mean that the welders would need 770 em-
ployees to sign authorization cards in the short period of
time that the Board affords petitioners to satisfy the
showing- of-interest-requirement when the Board directs
an election in a significantly larger unit than initially
sought by the petitioner. See NLRB Casehandling Man-
ual (Part Two) Representation Proceedings, Sections
11023.1, 11031.1 (Jan. 2017). That is, obviously, a
daunting undertaking for the welders who voted to bar-
gain collectively. Does the majority truly believe that this
is the intent of the Act? It certainly is contrary to the
Act’s underlying policy—to protect and facilitate em-
ployees’ opportunity to organize unions to represent
them20—to make it so difficult for a readily identifiable
group of employees to obtain union representation when,

nity of interest test. In failing to reconcile these inconsistencies, the
majority fails to satisfy the legal standard that an agency may depart
from its precedents only “provided the departure is explicitly and ra-
tionally justified.” See Kindred Nursing Centers East, LLC v. NLRB,
727 F.3d at 560, citing State of Mich. v. Thomas, 805 F.2d 176, 184
(6th Cir. 1986).
19 See Federal Electric Corp., Western Test Range, 157 NLRB 1130,
1132 (1966) (In effectuating 9(b)’s mandate that the Board make unit
determinations which will assure to employees the fullest freedom in
exercising rights guaranteed by the Act, i.e., the rights of self-
organization and collective bargaining, the Board has “emphasized that
the Act does not compel labor organizations to seek representation in
the most comprehensive grouping of employees unless such grouping
constitutes the only appropriate unit.”); Mc-Mor-Han Trucking Co.,
Inc., 166 NLRB 700, 701 (1967) (“[I]t is not the Board's function to
compel all employees to be represented or unrepresented at the same
time or to require that a labor organization represent employees it does
not wish to represent, unless an appropriate unit does not otherwise
exist.”); FedEx Freight, Inc v. NLRB., 816 F.3d at 523 (rejecting em-
ployer’s contention that the Board must consider other possible units
before determining whether the union’s proposed unit is appropriate).
20 See American Hospital Assn. v. NLRB, 499 U.S. at 609, 613.
as in this case, they constitute an appropriate unit under
the Board’s traditional community-of-interest test.
B.
Contrary to the majority, Specialty Healthcare respects
the Section 7 rights of employees outside the petitioned-
for unit to organize. Employees outside the petitioned-
for unit have the right, as well as the opportunity, to or-
ganize and to encourage their coworkers to do the same.
And those workers’ statutory rights remain firmly intact
whether or not the petitioned-for employees unionize.
Cf. Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898,
900 (7th Cir. 1991) (certification of unit of drivers,
which excluded mechanics, protected the rights of both
groups; mechanics subsequently organized under the
banner of a different union).
The majority disputes this and appears to be of the
view that the excluded employees may wish to be in-
cluded in the petitioned-for unit, and that the Specialty
Healthcare test somehow violates their supposed right to
such inclusion. Thus, the majority asserts, “[T]he possi-
bility that excluded employees may seek separate repre-
sentation in one or more separate bargaining units does
not solve the problem caused by the failure to give rea-
sonable consideration to their inclusion in a larger unit.”
But, the majority’s argument is without foundation.
The majority points to no case in which employees claim
that their interest in being included in a unit has been
ignored. Nor is there any evidence in this case that when
the Union filed its petition it excluded employees who
sought admission, or that any employees outside the peti-
tioned-for unit displayed any interest in collective bar-
gaining or self-organization. 21 In any event, as the Su-
preme Court recognized long ago, individuals who fall
within the Act’s broad definition of “employee” have “no
statutory right to be included in collective-bargaining
units under § 9(b).” NLRB v. Action Automotive, Inc.,
469 U.S. 490, 497–498 (1985) (emphasis added).22
Specialty Healthcare also fully protects the Section 7
rights of the excluded employees to refrain from engag-

21 If Congress believed that, even absent any evidence that the non-
petitioned-for employees seek to exercise their Sec. 7 rights, the Board
must include them in the unit in order to protect their rights to organize
and bargain collectively, Congress would have mandated elections in
employer-wide units in all cases. But Congress did no such thing.
22 Nor, contrary to the majority’s fleeting suggestion, does Specialty
Healthcare undermine the principles of majority rule and exclusive
representation. After all, if employees outside the petitioned-for unit
are shown to have an overwhelming community of interest with the
petitioned-for employees such that there is no legitimate basis for ex-
cluding them (see Blue Man Vegas, LLC v. NLRB, 529 F.3d at 421),
Specialty Healthcare mandates that they be included in the unit. And if
a majority of the totaled ballots from both groups are for representation,
the petitioner will be their exclusive representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
ing in union activity. These employees have the right to
refrain from organizing a union and to encourage their
coworkers to do the same. In fact, it would appear that
in cases where the petitioned-for employees outnumber
the excluded employees, it is the majority’s approach
that would put those employees’ rights to refrain from
union activity at risk by potentially requiring them to be
included in the unit even though neither they nor the peti-
tioned-for employees seek their inclusion.23
C.
The majority’s approach will also entangle the Board
and the parties in an administrative quagmire. In cases
such as this where there are numerous possible units be-
tween that petitioned for by the Union and the all-
encompassing alternative unit proposed by the Employer,
the majority’s approach would seemingly require the
Board to consider other possible permutations before
selecting the unit in which to conduct the election. And
to the extent the majority is truly concerned with the Sec-
tion 7 rights of employees outside a petitioned-for unit
(as opposed to simply improving an employer’s chances
of defeating the union by enlarging the unit), the majori-
ty’s approach would appear to mandate an inquiry into
whether employees outside the petitioned-for unit—and
which group(s) of such employees—seek to be included
in the petitioned-for unit. For how else can the Board
decide, as now required by the majority, which unit best
assures to all employees—both those inside the peti-
tioned-for unit and those outside the petitioned-for unit—
the fullest freedom in exercising their rights?
Needless to say, such an approach will lengthen hear-
ings—imposing costs on the Government and the par-
ties—and delay resolution of the question of representa-
tion, even though no party has requested that the Board
consider those other units and even though the peti-
tioned-for unit is an appropriate unit in which to conduct
the election. And it flies in the face of the well-
established principle that the Board is to consider only
whether the petitioned-for unit is an appropriate unit, not
whether it is the most appropriate unit. The majority
certainly provides no persuasive reason for empowering
an employer to argue that the interests of excluded em-
ployees render the petitioned-for unit inappropriate. The
petitioning employees would understandably view with
skepticism any employer claim that it was seeking to add
employees to the petitioned-for unit at those employees’
request—rather than to ensure the employer “a better
chance of winning the election” in a larger unit, which is
obviously “not a reason recognized in the National Labor

23 See Macy’s, Inc. v. NLRB, 824 F.3d at 566 (rejecting claim that
Specialty Healthcare will undermine employee rights).
Relations Act for rejecting” a petitioned-for unit. FedEx
Freight, Inc. v. NLRB, 839 F.3d at 637.
The majority claims that today’s decision does not in-
crease the opportunity for employers to manipulate the
unit, but that is manifestly incorrect. First, the majority
discards the clarity that Specialty Healthcare provided to
the Board’s unit determination jurisprudence. Then, the
majority exacerbates the confusion by eliminating the
consideration that the Board has traditionally given to the
petitioned-for unit. The majority’s new approach pro-
vides no basis to distinguish between cases where the
excluded employees share a sufficient community of
interest to render the petitioned-for unit inappropriate
versus merely finding that a larger unit would be more
appropriate. The vagueness of the majority’s test should
be fatal to its adoption. Even worse, the majority under-
cuts the central purpose of the Act by failing to provide
employees seeking to organize any confidence in predict-
ing whether they can bargain collectively with their em-
ployer without wasteful and time-consuming litigation
over the contours of the unit. The unmistakable conse-
quence of the majority’s amorphous test is to make unit
determination more unpredictable, more frequently a
subject of litigation, and more subjective. The more sub-
jective the standard is the greater the opportunity to liti-
gate the appropriateness of the unit, and, consequently,
the greater the opportunity to delay and frustrate employ-
ees’ right to organize.
It is no wonder that the Board has never followed the
majority’s untenable approach.
VI.
Turning to the facts of this case, we agree with the Re-
gional Director that the petitioned-for unit—which, as
previously noted, is comprised of 102 highly-skilled,
highly-paid welders, who perform distinct work and who
occupy two specific job classifications (rework welders
and rework specialists) out of approximately 120 job
classifications in PCC’s manufacturing operation—
constitutes an appropriate unit for the purposes of collec-
tive bargaining.24 The unit is appropriate under Specialty
Healthcare, because the welders are readily identifiable
as a group25 and share a distinct community interest,26

24 The Regional Director permitted a third classification occupied by
a single employee—the rework specialist/crucible repair employee--to
vote subject to challenge because there was insufficient evidence to
resolve its unit placement.
25 As the Regional Director correctly found, the 102 welders are
readily identifiable as a group because they occupy the only two job
classifications that share the function of repairing manufacturing de-
fects in metal castings.
26 We agree with our colleagues that the Regional Director did not
explicitly address at step one of the Specialty Healthcare analysis
whether the petitioned-for employees’ share a distinct community of
PCC STRUCTURALS, INC. 25
and PCC has not shown that the more than two thousand
employees whom it seeks to add to the unit share an
overwhelming community of interest with the petitioned-
for welders.
The highly-skilled nature of the welders’ work (as
demonstrated by the high qualifications and training re-
quired) strongly supports finding the welders’ interests to
be distinct from those of their less-skilled coworkers.
The two classifications in the petitioned-for unit are the
rework welder, the entry-level welding position, and the
rework specialist, the most experienced welders. Even at
the entry level, the rework welder job description re-
quires that the applicant qualifications include advanced
welding skills. Most of the witnesses testified that they
had completed a community college curriculum in weld-
ing prior to being hired for their position. In order to be
hired, the rework welders have to pass a visual welding
certification examination by demonstrating their welding
skills to the weld examiner and complete a 120 hour ini-
tial certification class. But that is not the end of their
training; next, the welders undergo intensive on-the-job
training, over multiple years, to obtain the requisite certi-
fications, to maintain their certifications, to work with
specific alloys, and to advance through PCC’s pay grades
and steps. Ultimately, to be eligible for a position as a
rework specialist, an employee must have a minimum of
5 years in step 6 as a rework welder.
Moreover, the welders’ self-training and evaluating
structure unquestionably supports a finding that their
interests are distinct, even from their coworkers occupy-
ing other job classifications with whom they may share
nominal supervision. Once on the job, the training of
welders is done by other welders. The initial welding
certification examination is administered and reviewed
by the weld examiner, who is also a rework specialist.
There are designated welding training coordinators who
facilitate the training at the various facilities. Again,
those training coordinators are rework specialists, whose
job descriptions—as corroborated by hearing testimo-
ny—specifically list responsibility for training rework
welders. Although the welders may share paper-
supervision with employees in other classifications, one
welder testified that he only interacted with his non-
welder supervisor regarding vacations and administrative
matters. 27

interest. However, for the reasons discussed below, we conclude that
the record fully supports a finding that the welders share a community
of interest distinct from the diverse array of the employer’s other pro-
duction and maintenance employees.
27 Member McFerran further notes that the self-training and evaluat-
ing structure is a telltale feature of highly-skilled craft units, which are
presumptively appropriate under the Act. See generally, Burns and Roe
As some of PCC’s most highly-paid employees, the
welders also share a distinct community of interest in
wages. PCC’s wage scale has pay grades between 5 and
20, with the welders all occupying grades 15, 16, and 18.
The welders testified that their compensation was in the
range of roughly $30/hour, approximately twice that of
employees at the bottom of PCC’s pay scale earning
$14.21/hour. As the Regional Director found, only a
small number of PCC employees are paid at the welders’
high rate.
The welders’ distinct functions and lack of interchange
with other production and maintenance employees fur-
ther supports finding their community of interest to be
distinct from other employees. The role of the rework
welders and rework specialists is to weld metal to fix any
castings defects. This work takes place at the “back end”
of PCC’s production process, after a full-scale wax ver-
sion of the desired casting is created; a ceramic shell is
placed around the wax mold and the wax is melted out;
metal is poured into the ceramic shell to create the final
casting; and the metal casting is inspected for defects.
No other employees do the metal welding work to fix
defects, ever. And once qualified, trained and paid as
welders, it is extremely rare for welders to transfer into
other nonmanager employee positions. Moreover, weld-
ers only perform non-welding work if the welding work
is so slow that they would otherwise be sent home. And
even when the welders perform less-skilled, nonwelding
work, they are still paid at the welders’ wage rate.
There are a number of other considerations that also
demonstrate the distinct role of welders in the workplace.
Welders work apart from other employees in their own
open air chambers or welding booths. They also use

Services, 313 NLRB 1307, 1308-1309 (1994). Previously, the Board
has found that welders in the aerospace industry are an appropriate craft
unit. See, e.g., Boeing Airplane Co., 124 NLRB 689 (1959); CNH
America, 25–RC–116569, (2014) (not reported in Board volumes)
(Member Miscimarra dissenting, stating that “the Board has not found a
craft unit of welders to be appropriate since 1955 except in the aero-
space industry.”) (emphasis added). Here, PCC is in the aerospace
industry: it manufactures airplane engines and frames. Accordingly,
the petitioned-for unit is a presumptively appropriate craft unit under
the Board’s long-standing jurisprudence, explicitly noted and incorpo-
rated by Specialty Healthcare. 357 NLRB at 940, fn. 16, citing
Mallinckrodt Chemical Works, 162 NLRB 387 (1966). Finding an
appropriate craft unit here is particularly apt given that the Regional
Director should and did consider whether welders were so functionally
integrated with other employees as to lose their separate identity. See
American Cyanamid, 131 NLRB 909, 910 (1961). See E.I. Dupont de
Nemours, 162 NLRB 413, 419 (1966) (explaining that integration of a
manufacturing process is a factor to consider, “[b]ut it is not in and of
itself sufficient to preclude the formation of a separate craft bargaining
unit, unless it results in such a fusion of functions, skills, and working
conditions between those in the asserted craft group and others outside
it as to obliterate any meaningful lines of separate craft identity.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
their own unique tools of their craft. In addition, they
perform the only job function with an engineer among
management employees (the welding engineer) specifi-
cally dedicated to their work. Finally, while the welders
may not exist as a department on PCC’s organization
chart, the welders themselves provided consistent, unre-
butted testimony that they regularly had welders-only
meetings and that they considered themselves and were
considered by colleagues to be a stand-alone department.
For all these reasons, it is clear that the welders share a
distinct community of interest from their less skilled,
lower paid coworkers who perform different functions
throughout PCC’s production and maintenance process.
It is also more than reasonable to conclude, as we do,
that the many strong characteristics favoring the welders’
community of interest are not overcome by their func-
tional integration with other production and maintenance
employees.28 At most, the welders were shown to some-
times communicate with other employees about their
work or, on rare occasions, to work in teams on quality
control issues. But this evidence does not demonstrate a
fusion of functions, skills, and working conditions be-
tween the welders and the more than two thousand pro-
duction and maintenance employees who PCC seeks to
add to the unit.
Turning to the second step in the Specialty Healthcare
analysis, we agree with the Regional Director that PCC
failed to demonstrate that employees excluded from the

28 The majority criticizes the Regional Director’s decision because it
considered whether the employees in the petitioned-for unit were func-
tionally integrated with each other, rather than with other production
and maintenance employees. But the Regional Director’s inquiry was
whether the welders were an appropriate unit, even though there was
not a unified welding department on PCC’s organizational chart. In
such circumstances, it was appropriate for the Regional Director to look
at whether the welders were functionally integrated with each other to
determine whether they shared a community of interest, despite the fact
that they worked out of different departments according to PCC’s or-
ganizational chart.
petitioned-for unit share an overwhelming community of
interest with the petitioned-for employees. The Regional
Director carefully considered PCC’s argument that the
only appropriate unit was all 2565 production and
maintenance employees, thoroughly analyzed whether
the excluded employees shared an overwhelming com-
munity of interest with the welders, and, in our view,
correctly determined that they did not. Accordingly, for
the reasons discussed, we would find that the Regional
Director properly certified the unit of rework welders and
specialists and would uphold the election results.
VII.
In sum, the majority has done a serious disservice to
the labor-management community and the Agency itself
by casually discarding—without briefing—precedent that
is so central to workers’ rights and to one of the Agen-
cy’s core functions. The shortcomings in the majority’s
process of denying stakeholder input are exceeded only
by the shortcomings in their decision. Not only does the
Majority’s radical new approach contravene the Act, but
its unmistakable consequences will frustrate employees’
rights to self-organization and needlessly delay resolu-
tion of questions concerning representation.
Accordingly, we dissent.
Dated, Washington, D.C. December 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD