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R.fesearch Service
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NLRB Reinstates Overwhelming Community
of Interest Collective Bargaining Unit
Standard
May 15, 2023
The National Labor Relations Act (NLRA) establishes a right to engage in collective bargaining for most
private sector employees. Since 2011, the National Labor Relations Board (NLRB or Board), which
enforces and administers the NLRA, has prescribed alternating standards for determining the scope of
proposed collective bargaining units. In its 2011 decision Specialty Healthcare & Rehabilitation Center of
Mobile, the Board indicated that an employer seeking to enlarge a proposed bargaining unit had to
establish that any additional employees shared an overwhelming community of interest with the
proposed unit's employees before the additional employees would be included in the unit. In 2017, the
Board overruled Specialty Healthcare and returned to a standard of examining whether the interests of the
employees in the proposed bargaining unit were sufficiently distinct from other employees to warrant a
separate unit (i.e., traditional community of interest standard). In December 2022, the Board reinstated
Specialty Healthcare 's overwhelming community of interest standard in American Steel Construction,
contending that this standard better promotes the policies of the NLRA and the rights of employees
seeking union representation. Some argue, however, that the standard promotes the formation of micro-
units that may include only a small number of employees and allows unions to organize at businesses
where a majority of all employees may not support unionization. This Legal Sidebar provides background
on the formation of collective bargaining units and reviews the Board's recent decision in American Steel
Construction.
Background
The NLRA recognizes the right of most private sector employees to engage in collective bargaining
through their chosen representatives. By encouraging the practice and procedure of collective
bargaining, the act attempts to mitigate and eliminate labor-related obstructions to the free flow of
commerce.
The NLRA establishes a framework for selecting a bargaining representative for a group of employees.
Section 9(b) of the NLRA, codified at 29 U.S.C. @ 159(b), provides that the Board shall determine, to
assure to employees the fullest freedom in exercising the rights guaranteed by this [Act], the unit
Congressional Research Service
https://crsreports.congress.gov
LSB10963
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govelpn0001&div=1&collection=&method=preview&ext=.png&size=3)
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