American Steel Construction

372 NLRB No. 23 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. American Steel Construction, Inc., and Local 25, Inter- national Association of Bridge, Structural, Orna- mental and Reinforcing Iron Workers (Iron- workers), AFL–CIO, Petitioner. Case 07–RC– 269162 December 14, 2022 DECISION ON REVIEW AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, RING, WILCOX, AND PROUTY In Specialty Healthcare & Rehabilitation Center of Mo- bile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nurs- ing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) (Specialty Healthcare), the Board rearticulated and clarified the framework that applies in bargaining-unit de- termination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifica- tions at a particular workplace. Drawing on longstanding precedent, Specialty Healthcare reaffirmed that, in order for such a unit to be appropriate, the employees in the pe- titioned-for unit must be readily identifiable as a group and share a “community of interest.” Specialty Healthcare also reiterated that, if a party contends that the unit is nev- ertheless inappropriate because it excludes additional em- ployees who are not sufficiently distinct from the peti- tioned-for employees, that party must show that the ex- cluded employees share an “overwhelming community of interest” in order to mandate inclusion.1 By retaining this heightened showing, the Specialty Healthcare framework properly protected the statutory rights being exercised by employees seeking representation, while also requiring that the petitioned-for unit have a rational basis and the requisite community of interest to engage in effective col- lective bargaining. It is therefore unsurprising that Spe- cialty Healthcare was upheld in the face of numerous challenges in the federal courts of appeals, with every re- viewing court finding that the framework was consistent with the Board’s longstanding unit-determination test. In PCC Structurals, Inc., 365 NLRB No. 160 (2017) (PCC Structurals), the Board overruled Specialty Healthcare and purported to restore a “traditional” test. In doing so, PCC Structurals focused almost exclusively on rejection of the “overwhelming community of interest” standard, contending that it was too deferential to the pe- titioned-for unit.2 As detailed below, however, PCC 1 357 NLRB at 943–945. 2 365 NLRB No. 160, slip op. at 6. Structurals’ reasoning fits poorly with the policy goals of the Act, with Supreme Court precedent, and with the “tra- ditional” test it purported to restore. In particular, by mak- ing it easier to invalidate a petitioned-for unit based on the supposed interests of excluded employees, PCC Structur- als discounted the rights of the employees seeking repre- sentation and obscured the core inquiry in such cases: whether the employees in the petitioned-for unit share a community of interest rendering the unit appropriate for the purposes of collective bargaining. Accordingly, as explained in greater detail below, we have decided to overrule PCC Structurals and reinstate Specialty Healthcare, which is superior to PCC Structur- als in multiple respects: it better reflects traditional Board precedent, better achieves consistency with Supreme Court precedent, and better promotes the policies of the Act. I. BACKGROUND On November 8, 2020, Local 25, International Associ- ation of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Ironworkers), AFL–CIO (the Petitioner) filed a petition seeking to represent all journeymen and apprentice field ironworkers working for American Steel Construction, Inc. (the Employer). The Employer asserted that the petitioned-for unit was inappropriate because the smallest appropriate unit must contain additional employ- ees: specifically, the painters, drivers, and inside fabrica- tors who work at the Employer’s shop. On January 4, 2021, the Regional Director issued her Decision and Order. Applying the unit determination test set forth in PCC Structurals, as revised in The Boeing Co., 368 NLRB No. 67 (2019),3 the Regional Director deter- mined that the petitioned-for unit was not appropriate be- cause the evidence was insufficient to establish that the Employer’s field ironworkers, who predominantly work as field installers at third-party jobsites, possess a commu- nity of interest that is “sufficiently distinct” from the Em- ployer’s remaining employees. Because the Petitioner was not willing to proceed to an election in any unit other than the petitioned-for unit, the Regional Director dis- missed the petition. Thereafter, in accordance with Sec- tion 102.67 of the Board’s Rules and Regulations, the Pe- titioner filed a request for review of the Regional Direc- tor’s Decision and Order. The Employer filed an opposi- tion. On December 7, 2021, the Board issued an Order Grant- ing Review and Notice and Invitation to File Briefs. See 371 NLRB No. 41. In granting review, the Board offered 3 Throughout this decision, we will refer to the collective standard established by PCC Structurals and Boeing as simply the PCC-Boeing standard. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 interested parties the opportunity to answer the following questions: 1. Should the Board adhere to the standard in PCC- Boeing? 2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, ei- ther in its entirety or with modifications? The Employer and Petitioner filed briefs on review, several interested parties filed briefs in response to the Board’s invi- tation,4 and the Employer and Petitioner filed responsive briefs. Having carefully considered the entire record in this proceeding, including the briefs on review and the amicus briefs, the Board has decided to overrule PCC-Boeing and reinstate Specialty Healthcare, for the reasons discussed below. We will therefore remand the case to the Regional Director for action consistent with this decision and the standard articulated herein, including reopening the record and reanalyzing the appropriateness of the petitioned-for unit, if necessary. II. DISCUSSION A. The Statute and the Board’s Traditional Unit-Deter- mination Standard The overarching policy of the National Labor Relations Act is, as stated in Section 1, to “encourag[e] the practice and procedure of collective bargaining,” and to “protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” Section 9(a) of the Act provides that employees have a right to representation by a labor organ- ization “designated or selected for the purposes of collec- tive bargaining,” and Section 9(b) provides that “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.” Thus, the 4 Specifically, the Board received and reviewed briefs from the Amer- ican Federation of Labor and Congress of Industrial Organizations; the Coalition for a Democratic Workplace, Chamber of Commerce, National Federation of Independent Business, National Retail Federation, Na- tional Association of Wholesaler-Distributors, and American Bakers As- sociation; the HR Policy Association; the International Association of Machinists and Aerospace Workers; the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL–CIO; the International Franchise Association; the International Un- ion of Operating Engineers; Members of the House Committee on Edu- cation and Labor; the National Labor Relations Board General Counsel; Service Employees International Union; and SHRM, the Society for Hu- man Resource Management. 5 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 165 (1941) (reiterating that the Board must comply with “the requirement that the Act itself repeatedly defines the “appropriate unit” as one that is appropriate “for the purposes of collective bargain- ing.”5 In elaborating on what renders a unit appropriate “for the purposes of collective bargaining,” the Supreme Court has explained: [T]he Board regards as its primary concern in resolving unit issues ‘to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment’ . . . . Such a mutuality of in- terest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a functionally distinct minority group of employees from being submerged in an overly large unit.6 Accordingly, “[a] cohesive unit—one relatively free of con- flicts of interest—serves the Act’s purpose of effective col- lective bargaining.”7 If the petitioned-for employees have a sufficient mutuality of interests, then the unit is, absent coun- tervailing considerations, appropriate for collective bargain- ing. In recognition of this key statutory principle, the Board has, since the earliest days of the Act, inquired into whether a petitioned-for unit has the requisite mutuality of interests—a “community of interest,” in the Board’s usual parlance.8 This well-established test considers whether the employees are organized into a separate department; have distinct skills and training; have distinct job func- tions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the employer’s other em- ployees; have frequent contact with other employees; in- terchange with other employees; have distinct terms and conditions of employment; and are separately supervised.9 As various configurations of employees might share a community of interest sufficient for collective bargaining, “[i]t is elementary that more than one unit may be appro- priate among the employees of a particular enterprise.”10 unit selected must be one to effectuate the policy of the act, the policy of efficient collective bargaining”). 6 Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 172– 173 (1971). 7 NLRB v. Action Automotive, Inc., 469 U.S. 490, 494 (1985). 8 See, e.g., International Broadcasting Corp., 67 NLRB 1227, 1229 (1946) (“These [announcer-control operators] have a community of in- terest, and are distinguishable from other employees of the Company. We find that they may constitute an appropriate unit.”). 9 See United Operations, Inc., 338 NLRB 123, 123 (2002). 10 Haag Drug Co., Inc., 169 NLRB 877, 877 (1968). See also Coun- try Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000) (observing that “more than one appropriate bargaining unit logically can AMERICAN STEEL CONSTRUCTION, INC. 3 This principle, recognized by the Supreme Court,11 is rooted in the language of the Act itself, since Section 9(b) makes clear that an appropriate unit may be “the employer unit, craft unit, plant unit, or subdivision thereof.” Hence, in every unit determination case, the Board’s inquiry will “consider only whether the requested unit is an appropri- ate one even though it may not be the optimum or most appropriate unit for collective bargaining.”12 In this re- gard, “the Act does not compel labor organizations to seek representation in the most comprehensive grouping of em- ployees unless such grouping constitutes the only appro- priate unit” (emphasis in original).13 In each case, the Board will examine the petitioned-for unit to determine whether it is appropriate, including when the employer contends that the unit is not appropriate because it ex- cludes certain classifications of employees. In that situa- tion, if the Board determines that the petitioned-for unit is not appropriate, then the Board must determine the alter- native configuration encompassing the petitioned-for clas- sifications that constitutes the smallest appropriate unit.14 Over the years, the Board has developed various tests to analyze the unit configurations articulated in Section 9(b). Employer-wide and plantwide units are presumptively ap- propriate under the Act, and will be approved unless the contesting party can rebut the presumption.15 Similarly, if the petitioned-for unit meets the criteria to be defined as a “craft unit,” it will also be approved.16 But a petitioner is be defined in any particular factual setting”) (quoting Operating Engi- neers Local 627 v. NLRB, 595 F.2d 844, 848 (D.C. Cir. 1979)). 11 As the Supreme Court has explained: Section 9(a) of the Act provides that the representative “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes” shall be the exclu- sive bargaining representative for all the employees in that unit.... This section, read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to organize “a unit” that is “appropriate”—not necessarily the single most appropriate unit.... Thus, one union might seek to represent all of the employees in a par- ticular plant, those in a particular craft, or perhaps just a portion thereof. American Hospital Association v. NLRB, 499 U.S. 606, 610 (1991) (emphasis in original; citations omitted). 12 Black & Decker Mfg. Co., 147 NLRB 825, 828 (1964). 13 Montgomery Ward & Co., 150 NLRB 598, 601 (1964). 14 See Boeing Co., 337 NLRB 152, 153 (2001). 15 See, e.g., Airco, Inc., 273 NLRB 348, 349 (1984) (plantwide unit); Greenhorne & O’Mara, Inc., 326 NLRB 514, 516 (1998) (employer- wide unit); UPS Ground Freight, Inc. v. NLRB, 921 F.3d 251, 254 (D.C. Cir. 2019) (“Under controlling Board precedent, a single-facility bar- gaining unit is ‘presumptively appropriate.’”); Dunbar Armored, Inc. v. NLRB, 186 F.3d 844 (7th Cir. 1999) (rejecting challenge to unit determi- nation that was based on presumptively appropriate single site unit). The dissent is therefore incorrect to suggest that imposing a heightened bur- den on a party seeking to invalidate a petitioned-for unit amounts to ab- dication of the Board’s duty in each case to determine the appropriate- ness of the unit and turns a representation case into an “adversarial” not limited to choosing one of these three unit composi- tions: Section 9(b) contemplates that a petitioner can also seek to represent a “subdivision” of employees that con- tains some, but not all, of the employee classifications17 that would otherwise be included in a plantwide, em- ployer-wide, or craft unit. In such cases, the Board has identified three fundamental elements that render the peti- tioned-for grouping of classifications appropriate: the pe- titioned-for unit must be (1) “homogeneous,” (2) “identi- fiable,” and (3) “separate” or “sufficiently distinct.”18 While each element is a fundamental component of the unit determination, the decisionmaker (usually the Re- gional Director, in the first instance) is not required to lit- igate or address every single element in every single case: if no party disputes a particular element, it need not be an- alyzed. The first element—that the unit be “homogeneous”— simply reflects the principle, articulated above, that peti- tioned-for employees must share a community of interest that renders the unit suitable for collective bargaining. Thus, the Board will reject a petitioned-for unit where the petitioned-for employees represent a heterogeneous grouping of classifications with disparate interests.19 The second element—that the unit be “identifiable”—is met where the unit employees can “logically and reasona- bly be segregated from other employees for the purposes of collective bargaining.”20 Put differently, there must be proceeding. To the contrary, the Board regularly applies presumptions and burdens in its unit determination cases. See also Hilander Foods, 348 NLRB 1200, 1200 (2006) (the contesting party bears the burden to rebut a presumptively appropriate single-facility unit). 16 See Burns & Roe Services Corp., 313 NLRB 1307, 1308 (1994). 17 The question of whether a petitioned-for unit must contain addi- tional classifications is substantively different than whether a petitioned- for unit must contain employees at additional locations. Because our decision today concerns the test for evaluating whether a petitioned-for unit must contain additional employee classifications, it does not alter the Board’s extant law with respect to whether additional locations must be included. See Hilander Foods, supra, at 1200 (articulating the test for when a petitioner seeks a single-facility unit); Laboratory Corp. of Amer- ica Holdings, 341 NLRB 1079, 1081–1082 (2004) (articulating the test for when a petitioner seeks a multi-location unit). 18 See, e.g., G. Fox & Co., Inc., 155 NLRB 1080, 1083 (1965) (find- ing that the petitioned-for unit was appropriate where it constituted “a homogeneous and identifiable group of employees with a sufficiently distinct and separate community of interests to constitute a separate ap- propriate bargaining unit”); Hampton Roads Broadcasting Corp. (WGH), 100 NLRB 238, 239 (1952); Lee Brothers Foundry, Inc., 106 NLRB 212, 213 (1953); Farmers Insurance Group, 164 NLRB 233, 233 (1967); J.C. Penney Company, Inc., 196 NLRB 708, 709 (1972); South- ern Baptist Hospitals, Inc., 242 NLRB 1329, 1330 (1979). 19 See, e.g., The Grand, 197 NLRB 1105, 1106 (1972); Tuskegee In- stitute, 221 NLRB 944, 944 (1975); Hayes Aircraft Corp., 98 NLRB 362, 365 (1952). 20 See Champion Machine & Forging Co., 51 NLRB 705, 707–708 (1943). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 a “substantial, rational basis” for the unit’s contours.21 The purpose of this element is to ensure that the peti- tioned-for subdivision of employees does not represent a “clearly arbitrary” unit composed of random classifica- tions and with no coherent organizing principle.22 The third element—that the unit be “sufficiently dis- tinct”—recognizes that even if the petitioned-for unit ex- hibits a mutuality of interests and has some coherent or- ganizing principle, it may nonetheless be inappropriate be- cause it excludes employees who cannot rationally be sep- arated from the petitioned-for employees on community- of-interest grounds.23 When applying this element, the Board invalidates petitioned-for units where the peti- tioned-for employees have little-to-no separate identity from the excluded employees.24 Crucially, the Board has always made clear that the presence of some overlapping interests between the petitioned-for and excluded employ- ees does not invalidate the petitioned-for unit, even if those overlapping interests indicate that a larger unit would also be appropriate for collective bargaining.25 In- stead, the excluded employees must share “strong,” “sub- stantial,” “overwhelming,” “significant,” or extremely “close” interests with the petitioned-for employees to mandate inclusion.26 As the U.S. Court of Appeals for the District of Columbia Circuit has explained, “[i]n order successfully to challenge [a] unit, the employer must do more than show there is another appropriate unit,” because multiple unit configurations may be appropria te and the petitioner is not required to seek the most appropriate one.27 Instead, the employer must prove that the peti- tioned-for unit is “irrational” and that “there is no legiti- mate basis upon which to exclude certain employees from it.”28 When taken together, these three elements—that a unit be homogeneous, identifiable, and sufficiently distinct— form the foundation of the Board’s historical unit determi- nation jurisprudence with respect to petitioned-for “subdi- visions” of employee classifications. The central inquiry is, of course, whether the petitioned-for employees share 21 See Johnson Controls, Inc., 322 NLRB 669, 672 (1996). 22 See Champion Machine, supra, at 708. See also Loose Wiles Bis- cuit Co., Inc., 44 NLRB 865, 868–869 (1942). 23 See, e.g., Brand Precision Services, 313 NLRB 657 (1994) (con- cluding that “the grouping chosen by the Petitioner is an arbitrary one, and should be rejected” where the Board was unable to find that “the [petitioned-for] operators possess a separate community of interest from the Employer’s other production employees”). 24 See, e.g., Casino Aztar, 349 NLRB 603, 607 (2007) (“In sum, we find that the beverage employees have little community of interest with each other that is not also shared with most of the catering and restaurant employees.”). 25 See Engineered Storage Products Co., 334 NLRB 1063, 1063 (2001) (“[C]ontrary to the Employer’s contentions, the fact that the jointly employed employees supplied by Tandem Staffing may share a a community of interest, which renders the unit appropri- ate for the purposes of collective bargaining (and therefore appropriate for the purposes of the Act). But the Board has also guarded against truly arbitrary or irrational units by invalidating petitioned-for units that constitute haphaz- ard groupings of random classifications, or that represent arbitrary segments of broader groups with indistinguisha- ble interests. In so doing, the Board has balanced its fun- damental duty under the Act—to facilitate the creation of bargaining units that possess the requisite community of interest—with its obligation to ensure that those bargain- ing units have a rational basis. B. Specialty Healthcare In Specialty Healthcare, 357 NLRB 934, the Board syn- thesized these three fundamental elements into an over- arching framework for situations where a petitioner is seeking to represent a “subdivision” of employee classifi- cations. Consistent with the Board’s traditional unit de- termination jurisprudence, the Specialty Healthcare framework considers whether the employees in the peti- tioned-for unit share a community of interest (i.e., whether the unit is “homogeneous”);29 whether the petitioned-for unit is “readily identifiable as a group” (i.e., “identifia- ble”) based on “job classifications, departments, func- tions, work locations, skills, or similar factors;”30 and whether the petitioned-for unit is “sufficiently distinct.” Recognizing that prior cases had been unclear with re- spect to the “sufficiently distinct” element, the Board un- dertook to more precisely define the standard that applies when a party asserts that “the smallest appropriate unit contains employees not in the petitioned-for unit.”31 When this element is disputed (and only when this element is disputed), the party contesting the petitioned-for unit bears the burden of proving that there is an “overwhelm- ing community of interest” between the petitioned-for and excluded employees in order to add the excluded employ- ees to the petitioned-for unit.32 As the Board explained in Specialty Healthcare, the precise formulation and wording of the “sufficiently community of interest with the petitioned-for employees does not mean that they must be included in the unit or that the petitioned-for unit is inappropriate.”). 26 See, e.g., id.; Colorado National Bank of Denver, 204 NLRB 243, 243 (1973); United Rentals, Inc., 341 NLRB 540, 541 (2004); Mc-Mor- Han Trucking Co., 166 NLRB 700, 701 (1967); Overnite Transportation Co., 322 NLRB 723, 726 (1996). 27 Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421–422 (D.C. Cir. 2008). 28 Id. at 421. 29 Specialty Healthcare, 357 NLRB 934, 942–943 (2011). 30 Id. at 945. 31 Id. at 943. 32 Id. at 944. AMERICAN STEEL CONSTRUCTION, INC. 5 distinct” element has varied from case to case,33 and, ac- cordingly, the Board did not necessarily apply a consistent approach to assessing this element in every single case prior to Specialty Healthcare. Nevertheless, the “over- whelming community of interest” standard reflects the Board’s historical requirement that, in order to demon- strate that the petitioned-for unit is not sufficiently dis- tinct, a party contesting that unit must show more than a community of interest between the petitioned-for and ex- cluded employees: it must make a heightened showing to demonstrate that the interests of the petitioned-for and ex- cluded employees are so similar that the petitioner is seek- ing, in essence, an arbitrary segment of an otherwise ap- propriate unit.34 In other words, the interests of the peti- tioned-for and excluded employees must “overlap almost completely” to mandate inclusion.35 There is substantial statutory justification for requiring a heightened showing of parties who are seeking to add employees to the petitioned-for unit. As discussed above, an appropriate unit is one that is appropriate for the pur- poses of collective bargaining, and the Supreme Court has stated that what renders a unit appropriate for collective bargaining is the requisite mutuality of interests among the unit employees. Moreover, Section 9(b) of the Act states that the Board’s unit determinations must assure employ- ees’ “fullest freedom” in pursuing their rights under the Act. In this regard, the Supreme Court has made clear that “[t]he central purpose of the Act [i]s to protect and facili- tate employees’ opportunity to organize unions to repre- sent them in collective-bargaining negotiations,” and that the Act “implies that the initiative in selecting an appro- priate unit resides with the employees.”36 Accordingly, if a petitioned-for unit is an identifiable group that has the 33 Id. at 944–945. 34 See Pratt & Whitney, 327 NLRB 1213, 1217 (1999); Seaboard Marine, 327 NLRB 556, 556 (1999). In Specialty Healthcare, the Board observed that the Board has frequently referred to such arbitrary segmen- tations as “fractured units.” See 357 NLRB at 946. However, we note that the Board has used language referencing “arbitrary segments” in any situation where the petitioned-for unit is arbitrary, gerrymandered, or ir- rational, including when the petitioned-for unit does not share an internal community of interest (see, e.g., J. Weingarten, Inc., 191 NLRB 149, 150 (1971)) or when it is not identifiable (see, e.g., F. H. McGraw & Com- pany, 106 NLRB 624, 626 (1953)). Going forward, we encourage Re- gional Directors to focus their analysis on each of the three individual elements when making unit determinations, as opposed to using the broader, “fractured unit” phrasing. 35 357 NLRB at 944 (quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d at 422). Our dissenting colleagues assert that Blue Man Vegas “can- not bear the weight” that Specialty Healthcare places on it, because “[i]n enforcing that decision, the court did not hold that the Board must apply that standard, nor did it have before it the question of whether that stand- ard should apply when a party does contend that the petitioned-for unit is inappropriate.” But Blue Man Vegas does not “bear the weight” of Specialty Healthcare alone: the District of Columbia Circuit has since endorsed the Specialty Healthcare framework (as did every other Circuit requisite community of interest—and therefore is broadly appropriate for the purpose of collective bargaining—then the employees should be permitted to organize in their chosen unit (thereby assuring them their “fullest freedom” to organize) unless the contesting party can prove that the petitioned-for unit is arbitrary on community-of-interest grounds—not less optimal, or less efficient, or less appro- priate,37 but truly arbitrary, meaning that the differences between the petitioned-for and excluded employees are so minimal that it would be irrational to engage in the process of collective bargaining absent the excluded employees. In requiring a showing of arbitrariness, the “overwhelm- ing community of interest” standard correctly recognizes that the “sufficiently distinct” element is a secondary con- cern in unit determinations: the primary question remains whether the petitioned-for unit has the requisite mutuality of interests to bargain collectively.38 The “overwhelming community of interest” standard also recognizes that there are statutory limitations on how much latitude can be given to petitioned-for units.39 First, Section 9(c)(5) of the Act provides that the extent of or- ganizing “shall not be controlling” with respect to the Board’s unit determinations. This is a relatively narrow limitation: it is well established that Section 9(c)(5) does not render employees’ choice of unit irrelevant (to the con- trary, the extent of organization “is always a relevant con- sideration”40), but is instead designed to prevent the Board from approving units that “could only be supported on the basis of the extent of organization,” as the Supreme Court has observed.41 Consistent with Section 9(c)(5), the “overwhelming community of interest” standard evaluates whether there is a rational basis for excluding particular classifications on community-of-interest grounds, thereby Court to consider it) and has reaffirmed that the principles articulated in Blue Man Vegas are entirely consistent with the Board’s prior unit deter- mination case law. See Rhino Northwest, LLC v. NLRB, 867 F.3d 95, 100–101 (D.C. Cir. 2017). 36 See American Hospital Association v. NLRB, supra, 499 U.S. at 609–610. 37 See Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enfd. on other grounds 190 F.2d 576 (7th Cir. 1951) (“There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act requires only that the unit be ‘appropriate.’”) (emphasis in original). 38 A heightened showing is also justified by the fact that in exercising the statutory right to self-organization, petitioned-for employees are also exercising their broader Constitutional right to freely associate. See 357 NLRB at 941 fn. 18. 39 See id. at 941–942. 40 Marks Oxygen Co., 147 NLRB 228, 229 (1964). See also NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–442 (1965) (ex- plaining that Sec. 9(c)(5) “was not intended to prohibit the Board from considering the extent of organization as one factor, though not the con- trolling factor, in its unit determination”). 41 NLRB v. Metropolitan Life Insurance Co., supra, at 441 (emphasis added). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ensuring that the petitioned-for unit is not based solely on the extent of organization. Second, Section 9(b) directs that the Board determine the appropriate unit “in each case.” As the Supreme Court has explained, the purpose of the “in each case” require- ment is “simply to indicate that whenever there is a disa- greement about the appropriateness of a unit, the Board shall resolve the dispute.”42 The Board’s consideration of a petitioned-for unit accordingly cannot be perfunctory, but must be undertaken based on the particular facts of the case. Of course, aside from the “overwhelming commu- nity of interest” standard, the Board considers, in each case, whether the petitioned-for unit has the requisite com- munity of interest to bargain collectively and whether it constitutes an identifiable grouping of employees. But, in any event, the “overwhelming community of interest” standard requires that—in each case where a party con- tends that a petitioned-for unit is not sufficiently distinct— the Board carefully scrutinize the similarities and differ- ences between the petitioned-for and excluded employees to determine whether the exclusion has a rational basis. The “overwhelming community of interest” standard is therefore not a matter of mechanically deferring to em- ployees’ desire for representation in the petitioned-for unit. Rather, the Regional Director must find that there are more than minimal differences between the petitioned- for employees’ shared interests and the interests of the ex- cluded employees another party contends must be added to the unit. If there are more than minimal differences, the petitioned-for unit has a rational basis such that collective bargaining limited to that unit may appropriately take place. However, the “overwhelming community of inter- est” standard correctly characterizes this inquiry as 42 American Hospital Association v. NLRB, supra, 499 U.S. at 611– 612. 43 See Constellation Brands v. NLRB, 842 F.3d 784 (2d Cir. 2016); FedEx Freight, Inc. v. NLRB, 832 F.3d 432 (3rd Cir. 2016); Nestle Dreyer’s Ice Cream Company v. NLRB, 821 F.3d 489 (4th Cir. 2016); Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552, 561 (6th Cir. 2013); FedEx Freight Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir. 2016); Rhino Northwest, LLC v. NLRB, supra. 44 See NLRB v. Action Automotive, Inc., 469 U.S. at 496–497 (“[W]e do not make labor policy under § 9(b); Congress vested that authority in the Board, which brings its extensive experience in the administration of the Act to bear on questions of unit determinations” (citations omitted)). 45 FedEx Freight Inc. v. NLRB, 839 F.3d at 638. 46 Constellation Brands v. NLRB, 842 F.3d at 792. There is accord- ingly no basis for the dissent’s argument that the “overwhelming com- munity of interest” standard is inconsistent with Board precedent merely because the Board did not regularly use that precise phrase in evaluating the “sufficiently distinct” element prior to Specialty Healthcare. The courts have recognized as much. See Kindred Nursing Centers East, LLC v. NLRB, supra, at 562 (“[T]he Board explained the need to clarify its law, acknowledging that it had used some variation of a heightened placing a burden on the party contesting the petitioned-for unit because—consistent with the Board’s traditional unit determination jurisprudence and the statutory policies of the Act—the contesting party must prove that the peti- tioned-for unit is truly arbitrary on community-of-interest grounds, not just that some other unit configuration is also, or even more, appropriate. The Board’s review is no less thorough simply because the Act imposes a relatively high standard (i.e., arbitrariness) on parties seeking to invali- date a petitioned-for unit that is otherwise identifiable and possesses the requisite community of interest to bargain collectively. In sum, the Specialty Healthcare framework, including the “overwhelming community of interest” standard, is entirely consistent with both the Board’s traditional unit determination jurisprudence and the statutory policies of the Act. Indeed, as observed earlier, the Specialty Healthcare test was upheld by every Circuit Court to re- view it43—an outcome consistent with the deference courts give to the Board’s unit determinations in light of the Board’s policy-making role and expertise, as noted by the Supreme Court.44 As these courts recognized, the “overwhelming community of interest” test “is not the in- vention of the Specialty Healthcare case.”45 Instead, this standard “is consistent with earlier Board precedents that imposed a heightened burden on a party who urges the Board to add employees to a unit that has otherwise been deemed appropriate.”46 And again, the “overwhelming community of interest” standard is only one element of the Specialty Healthcare framework: the primary focus re- mains whether the petitioned-for units share a sufficient mutuality of interests to bargain collectively.47 standard when a party (usually an employer) argues that the bargaining unit should include more employees.”). 47 In this regard, there is no merit to the dissent’s assertion that Spe- cialty Healthcare improperly imported the Board’s traditional accretion test into initial unit determinations. First, the Board cannot find an ac- cretion on the basis of an overwhelming community of interest alone: it must also find that “the additional employees have little or no separate group identity and thus cannot be considered to be a separate appropriate unit.” Safeway Stores, Inc., 256 NLRB 918, 918 (1981). Second, the Board applies the “overwhelming community of interest” standard dif- ferently in the accretion context, placing an emphasis on the “critical” community-of-interest factors of interchange and supervision. See Fron- tier Telephone of Rochester, Inc., 344 NLRB 1270, 1271 (2005). There are no “critical” factors under Specialty Healthcare. Finally, to the ex- tent that both the accretion test and Specialty Healthcare utilize similar language for one element of larger inquiries, that is because both tests implicate a similar issue: whether certain employees must be included in a unit (existing or petitioned-for) because they are too similar to unit em- ployees to be excluded. As the courts have recognized in upholding Spe- cialty Healthcare, it makes sense for the Board to apply a broadly similar policy in both instances. See, e.g., Nestle Dreyer’s Ice Cream Company, supra, at 501 (observing that “[a]s in the accretion context, the question is whether some employees share more than a community of interest with AMERICAN STEEL CONSTRUCTION, INC. 7 C. PCC-Boeing Despite unanimous appellate approval of Specialty Healthcare, the Board overruled the “overwhelming com- munity of interest” standard in PCC Structurals, 365 NLRB No. 160, and in doing so purported to return to the Board’s “traditional” test. The Board would later clarify, in Boeing, that the “traditional” test contemplated by PCC Structurals contains three parts: First, the proposed unit must share an internal commu- nity of interest. Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively an- alyzed and weighed. Third, consideration must be given to the Board’s decisions on appropriate units in the par- ticular industry involved.48 There is no dispute that the first step of this test comports with the Board’s traditional unit determination test and with Spe- cialty Healthcare; nor is there any dispute that the third step does so.49 At the second step, however, the PCC-Boeing test diverges significantly from Specialty Healthcare in terms of what it means for a petitioned-for unit to be “sufficiently dis- tinct.” While Specialty Healthcare holds that a petitioned-for unit is sufficiently distinct unless the excluded employees share an “overwhelming community of interest” with the pe- titioned-for employees, PCC-Boeing holds that the peti- tioned-for unit is sufficiently distinct only if the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.”50 The distinction between these two standards lies at the heart of PCC-Boeing, which focuses almost exclu- sively on the “overwhelming community of interest” stand- ard and the supposedly undue deference it gave to petitioned- for units.51 PCC-Boeing’s approach to the “sufficiently distinct” el- ement is flawed for three significant reasons. First, PCC- Boeing fails to articulate a workable alternative to the “overwhelming community of interest” standard, instead propounding a standard that is vague, confusing, and has no support in Board precedent. Second, by eliminating the “overwhelming community of interest” test, PCC-Boeing removes an important safeguard that provides employees with the fullest freedom to organize in units of their the members of the unit.”); Macy’s, Inc. v. NLRB, 824 F.3d at 569 (noting that “the structure and the underlying policy motivations of [the accre- tion] standard resemble those of the Specialty Healthcare overwhelming community of interest test.”). 48 Boeing, supra, slip op. at 3. 49 Although the consideration of industry-specific unit-determination guidelines was not articulated as a separate step or inquiry prior to Boe- ing, it is a well-established component of unit-determination jurispru- dence that Specialty Healthcare was careful to recognize. See 357 NLRB at 942, 946 fn. 29. choosing. Finally, and perhaps most importantly, PCC- Boeing provides no compelling rationale for why the Board should add employees to units that otherwise pos- sess a rational basis and the requisite mutuality of interests to bargain collectively. When combined, these three flaws lead to a decision that is impractical, damaging to em- ployee interests, and unpersuasive from either a statutory or policy standpoint. First, it is unclear what PCC-Boeing requires in deter- mining whether a petitioned-for unit is “sufficiently dis- tinct.” PCC Structurals posits that it is returning to the Board’s “traditional” community of interest test, and reit- erates that the Board must consider “whether employees in the proposed unit share a community of interest suffi- ciently distinct from the interests of employees excluded from that unit to warrant a separate bargaining unit.”52 But Specialty Healthcare did not eliminate the “sufficiently distinct” element; rather, it performed the critical function of explicitly articulating, for the first time, exactly what a party must show (an “overwhelming community of inter- est”) in order to demonstrate that a petitioned-for unit is not sufficiently distinct. Accordingly, the onus was on the PCC Structurals Board to provide its own countervailing guidelines for how to determine whether a petitioned-for unit is “sufficiently distinct.” As the Board observed in Specialty Healthcare, merely stating that a unit must be “sufficiently distinct” does not explain what degree of dis- tinction is necessary.53 PCC-Boeing, however, offers little in the way of con- structive guidance. PCC Structurals states that a unit is sufficiently distinct if the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit mem- bers.”54 On its face, this language suggests that if the pe- titioner cannot prove that the petitioned-for employees have more differences from, than similarities with, the ex- cluded employees, then the excluded employees are not sufficiently distinct from the petitioned-for employees and must be included in the unit. That approach, however, is completely at odds with the Board’s traditional unit deter- mination jurisprudence. Prior to PCC Structurals, the Board had never used any language resembling this for- mulation, and neither PCC Structurals nor Boeing (nor our 50 Boeing, supra, slip op. at 4 (emphasis in original) (internal quota- tions omitted). 51 PCC Structurals, supra, slip op. at 6 (contending that Specialty Healthcare gives “all-but-conclusive deference to every petitioned-for ‘subdivision’ unit”). 52 Id. at 11. 53 See Specialty Healthcare, supra, at 945. 54 Id. (emphasis in original); Boeing, supra, slip op. at 4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 dissenting colleagues) cite to any prior Board decisions ar- ticulating, explaining, or applying such a standard. Fur- ther, if it is indeed the petitioner’s burden to prove that the petitioned-for employees are more different from than they are similar to the excluded employees, then this is flatly inconsistent with the Board’s traditional unit deter- mination jurisprudence, which has always required the contesting party to prove that the excluded employees have significant, substantial, or otherwise extensive simi- larities with the petitioned-for employees before mandat- ing inclusion.55 Perhaps recognizing this potential failing, Boeing elab- orates on PCC Structurals by explaining that the “[suffi- ciently distinct] inquiry does not require that distinct in- terests must outweigh similarities by any particular mar- gin, nor does it contemplate that a unit would be found inappropriate merely because a different unit might be more appropriate.”56 Rather, “what is required is that the Board analyze the distinct and similar interests and ex- plain why, taken as a whole, they do or do not support the appropriateness of the unit.”57 But, stating that Regional Directors should explain why certain differences or simi- larities support “the appropriateness of the unit” provides no guidance as to what types of differences and similari- ties render a unit appropriate; how heavily they should be weighed; or what threshold must be met to demonstrate that the unit is (or is not) sufficiently distinct. Simply put, PCC-Boeing directs Regional Directors to weigh the varying interests of the petitioned-for and ex- cluded employees without explaining what tips the scales in one direction or the other. In contrast to Specialty Healthcare, it never articulates the precise degree of dis- tinction that is necessary to render the unit appropriate without the inclusion of additional employees. And, by failing to articulate clear and consistent guideposts for de- termining when additional employees must be included in the unit, PCC-Boeing invites extensive litigation and makes it more difficult for Regional Directors to quickly resolve preelection disputes over unit appropriateness. This is particularly troublesome in the context of represen- tation cases, where the Board has a duty to expeditiously resolve questions concerning representation.58 55 See fn. 25, supra, and cases cited therein. 56 Boeing, supra, slip op. at 4. 57 Id. 58 See Neuhoff Bros. Packers, Inc., 154 NLRB 438, 438 (1965) (ac- knowledging “the statutory policy that questions preliminary to the es- tablishment of the bargaining relationship be expeditiously resolved”) (internal quotations omitted). 59 Ballantine, P. & Sons, 141 NLRB 1103, 1106 (1963). 60 Id. 61 See Black & Decker Mfg. Co., supra, at 828. Second, the removal of the “overwhelming community of interest” test infringes on employees’ “fullest freedom” to organize under Section 9(b) of the Act. The Board has long recognized that requiring employees to seek repre- sentation in a larger or more comprehensive unit can ef- fectively “deny them their statutory rights to self-organi- zation and bargaining,” because larger units are frequently more difficult to organize, especially in situations where the previously excluded employees had not shown any in- terest in unionizing.59 Thus, in order to ensure employees the fullest freedom to exercise their rights under the Act, “the Board must be wary lest its unit determinations un- necessarily impede the exercise by employees of these rights,”60 and it does not require petitioners to organize in larger or more comprehensive units simply because such units may be more optimal or effective than the petitioned- for unit.61 Accordingly, Specialty Healthcare’s “over- whelming community of interest” standard is deliberately protective of the unit configuration chosen by the petition- ing employees, holding that a unit with the requisite mu- tuality of interests for collective bargaining should not be invalidated unless it arbitrarily excludes employees with near-indistinguishable interests. PCC-Boeing, in contrast, makes it easier to mandate the inclusion of additional em- ployees by removing the requirement that the contesting party make a heightened showing with respect to the sim- ilarities between the petitioned-for and excluded employ- ees. This eliminates an important safeguard that preserves the right of employees to organize as long as their chosen unit is not arbitrary and has the requisite mutuality of in- terests to bargain collectively.62 The final, and perhaps most troubling, problem with PCC-Boeing is that it provides no compelling reason for why this safeguard should be removed. PCC-Boeing overrules Specialty Healthcare’s “overwhelming commu- nity of interest” standard because it supposedly “unduly limits its focus to the Section 7 rights of employees in the petitioned-for unit, while disregarding or discounting the Section 7 rights of excluded employees except in the rare case when excluded employees share ‘overwhelming’ in- terests . . . with petitioned-for employees.”63 Purporting to better accommodate the excluded employees’ Section 7 interests, PCC-Boeing requires unit determinations to 62 Because the Board’s dismissal of a representation petition has not been regarded as judicially reviewable, employees have little recourse to achieve representation in their chosen unit should the Board find it inap- propriate, except to engage in recognitional picketing under Sec. 8(b)(7) of the Act—a tactic which is rarely used. In contrast, employers can easily seek review of a Board’s unit determination by refusing to bargain and then litigating the appropriate unit in the ensuing test-of-certification case. 63 PCC Structurals, supra, slip op. at 7–8. AMERICAN STEEL CONSTRUCTION, INC. 9 “consider the Section 7 rights of employees excluded from the proposed unit and those included in that unit.”64 Thus, the fundamental premise of PCC-Boeing is that excluded employees have certain Section 7 rights that can only be protected by mandating their inclusion in the unit and that protecting the excluded employees’ rights (at the expense of the petitioning employees’ fullest freedom to associate in a unit of their choosing)65 is the purpose of the “sufficiently distinct” element. This fundamental prem- ise, however, fails to withstand even the slightest scrutiny. To begin, it is not the excluded employees who seek to vindicate their rights by arguing for the inclusion of addi- tional employees in the unit, as they are not made party to the representation proceeding. Instead, it is other, usually non-petitioning parties—most frequently employers— who seek to litigate the appropriateness of the unit by con- tending that additional employees must be added. As the Supreme Court has explained, the interests of an employer are not equivalent to the interests of employees, and “the Board is accordingly entitled to suspicion when faced with an employer’s benevolence as its workers’ champion.”66 Such skepticism is fully justified in situations where a contesting party is seeking to add employees to the unit because the Section 7 rights of any employees excluded from the unit are not implicated by their exclusion from the unit. Section 7 of the Act provides as follows: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, and shall also have the right to refrain from any or all of such activities . . . . 29 U.S.C. §157. Consistent with Section 7, the excluded em- ployees retain the right to organize separately or to refrain from doing so regardless of whether the petitioned-for em- ployees decide to select a collective-bargaining representa- tive. Further, if the excluded employees desire to join the pe- titioned-for unit at a later date, they can do so via a self-deter- mination election, as long as they constitute an appropriate voting group and share a community of interest with the ex- isting unit employees67—far less than what is required to 64 Id., slip op. at 8 (emphasis in original). 65 As the Board explained in Specialty Healthcare, “[a] key aspect of the right to ‘self-organization’ is the right to draw the boundaries of that organization—to choose whom to include and whom to exclude.” 357 NLRB at 941 fn. 18. See also Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984) (recognizing that “individuals’ selection of those with whom they wish to join in a common endeavor” is a key element of freedom of as- sociation). 66 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996). 67 See Warner Lambert Co., 298 NLRB 993, 995 (1990). mandate their inclusion in the petitioned-for unit for purposes of an initial election. Finally, if the excluded employees ex- ercise their right to refrain from organizing entirely, any col- lective-bargaining agreement reached on behalf of the peti- tioned-for employees will not dictate terms and conditions for anyone outside of the petitioned-for unit.68 The Section 7 rights of excluded employees, therefore, are not implicated (much less negatively affected) by their exclusion from the unit. The excluded employees remain free to exercise their rights if and when they choose to do so. PCC-Boeing provides no meaningful rebuttal to this point, except for asserting that “the possibility that ex- cluded employees may seek separate representation in one or more separate bargaining units does not solve the prob- lem caused by the failure to give reasonable consideration to their inclusion in a larger unit,” because the Act requires the Board to “consider the interests of all employees . . . so the Board can ‘decide whether the unit should be the ‘employer unit, craft unit, plant unit, or subdivision thereof.’”69 But it does not actually answer the question of why, and to what extent, the interests of the excluded employees are relevant when the Board considers whether a particular grouping of employee classifications consti- tutes an appropriate unit. As just shown, the answer im- plicitly advanced by PCC-Boeing—that the excluded em- ployees’ interests are relevant because exclusion from the unit abrogates their rights under Section 7—does not with- stand scrutiny.70 Moreover, by purporting to guard the rights of excluded employees, PCC-Boeing turns the statutory focus of the unit determination on its head. The primary purpose of any unit determination, as the Act itself states, is to deter- mine whether the petitioned-for unit is appropriate for the purposes of collective bargaining—an inquiry that fo- cuses on whether the petitioned-for employees share a suf- ficient mutuality of interests, and which does not implicate the interests of the excluded employees. Further, Section 9(b) mandates that the Board “assure to employees the fullest freedom in exercising the rights guaranteed by the Act,” echoing Section 1’s commitment to “protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their 68 Nor, for that matter, will it prevent additional employees from pe- titioning for a self-determination election to join the unit (provided, of course, that the labor organization involved is also willing to represent those additional employees). See, e.g., UMass Memorial Medical Cen- ter, 349 NLRB 369 (2007). 69 PCC Structurals, supra, slip op. at 8 fn. 42. 70 Furthermore, as also shown, the overwhelming community of in- terest test does give “reasonable consideration” to the inclusion of addi- tional employees in a petitioned-for unit; it simply clarifies that the party arguing for their inclusion must meet a high bar in order to prevail on that argument. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 own choosing.” Consistent with these principles, the Su- preme Court has made clear that an important function of the Board’s unit determinations is “to prevent a function- ally distinct minority group of employees from being sub- merged in an overly large unit.”71 Employees who file a petition are, of course, exercising their Section 7 rights, and it is, therefore, the petitioning employees’ “fullest freedom” with which the Board ought to be concerned. The petitioning employees, and not the excluded employ- ees, are those whose bargaining interests may be sub- merged (and, by extension, whose rights may be in- fringed) if the Board is too eager to require additional em- ployees—who are not themselves currently exercising their right to self-organization—to be included in the unit. So long as the petitioned-for employees have the requisite mutuality of bargaining interests, and the unit is not arbi- trary, then the Board can, should, and must be vigilant in assuring the petitioned-for employees’ fullest freedom in exercising their rights. The overwhelming community of interest standard does that by requiring a heightened showing to include additional employees in the unit; PCC- Boeing’s focus on the interests of employees who have not chosen to exercise their right to self-organization—and who will retain all of their rights under Section 7 if they are excluded from the unit—does not. The remaining statutory arguments relied upon in PCC- Boeing—that Specialty Healthcare’s “overwhelming community of interest” standard abrogates the Board’s duty to consider the appropriate unit “in each case,” and that it renders the extent of organizing controlling in der- ogation of Section 9(c)(5)72—are similarly flawed. Nei- ther Section 9(c)(5) nor the Board’s duty to determine the appropriate unit “in each case” prevent the Board from re- quiring a heightened showing from parties seeking to in- clude additional employees in the unit—to the contrary, each of the five circuit courts to consider these arguments has roundly rejected them.73 Consistent with the “in each case” requirement, Specialty Healthcare requires that the Board evaluate whether a unit is “sufficiently distinct” whenever a contesting party contends that additional em- ployees must be included in the unit. And, as we have discussed above, Section 9(c)(5) requires the Board to in- validate units only in circumstances where there is no other rational basis for the exclusion of certain employees, 71 See Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, supra, at 172– 173. 72 PCC Structurals, supra, slip op. at 8. 73 See FedEx Freight, Inc. v. NLRB, 832 F.3d at 943–945; Nestle Dreyer’s Ice Cream Company v. NLRB, 821 F.3d at 497; Kindred Nurs- ing Ctrs. East, LLC v. NLRB, 727 F.3d at 563–565; FedEx Freight, Inc. v. NLRB, 816 F.3d at 525–526; Rhino Northwest, LLC v. NLRB, 867 F.3d at 100–102. such that the exclusion can only be explained by the extent of organization74—a narrow requirement that is consistent with, and already recognized by, Specialty Healthcare’s “overwhelming community of interest” standard. Quite simply, there is no statutory justification for imposing a more stringent standard than what Section 9(c)(5) re- quires, and the expansive reading of these provisions es- poused by PCC-Boeing (and rearticulated by the dissent) has, again, been unambiguously refuted by numerous ap- pellate decisions.75 In short, the standard articulated by PCC-Boeing has a weak foundation in Board law and lacks any clear guiding principle that can be explained by statutory policy or the Act’s text for Regional Directors who are charged with applying it. PCC-Boeing’s justification for this standard is entirely limited to its criticisms of Specialty Healthcare. But these criticisms rest on novel, dubious, and flawed in- terpretations of statutory provisions that do not withstand scrutiny. Moreover, PCC-Boeing incorrectly examines the “overwhelming community of interest” standard in a vacuum and, in overruling it, makes the “sufficiently dis- tinct” element the Board’s highest concern, thereby ob- scuring and ignoring the Board’s primary duty in unit de- termination cases: to determine whether the petitioned-for unit is appropriate for the purposes of collective bargain- ing. D. Response to Dissent As our dissenting colleagues acknowledge, the sole point of disagreement between Specialty Healthcare and PCC-Boeing is how the Board should evaluate the “suffi- ciently distinct” element. According to the dissent, the purpose of the “sufficiently distinct” element is not to evaluate whether there is a rational basis for the exclusion of certain classifications, but rather to perform a rigorous balancing test that yields just one correct result in every case, by precisely weighing two supposedly competing considerations: the petitioning employees’ right to organ- ize in a unit of their choosing and the excluded employees’ presumed interest in participating in the election process. We reject that view. Like Goldilocks, the dissent wants a unit that is “just right.” That unit must maximize the participation of em- ployees whose interests might be affected by the results of 74 See NLRB v. Metropolitan Life Insurance Co., 380 U.S. at 441. 75 Nor does limiting the “sufficiently distinct” inquiry to the narrow requirement imposed by Sec. 9(c)(5) abrogate the Board’s role as a neu- tral decision-maker. As the Supreme Court has explained, “the Board’s policy may have the effect of favoring union representation; however, a disparate impact does not violate the principle of neutrality. Indeed, vir- tually every Board decision concerning an appropriate bargaining unit— e.g., the proper size of the unit—favors one side or the other.” NLRB v. Action Automotive, Inc., 469 U.S. at 498. AMERICAN STEEL CONSTRUCTION, INC. 11 the election (i.e., any employees whose interests are “in- sufficiently distinct” from those of the petitioned-for em- ployees). At the same time, it must somehow preserve the petitioning employees’ “right to self-organize” in a unit that is capable of bargaining collectively (i.e., one that possesses an internal community of interest). This ap- proach has no sound basis in Board precedent. And in- deed, it runs directly counter to a core tenet of the Board’s unit determination jurisprudence endorsed by the federal courts, including the Supreme Court: that the Board’s role is to permit the petitioning employees to organize in an appropriate unit, not to ascertain which unit configuration is the optimal one in the Board’s judgment.76 Despite the dissent’s repeated insistence that “decades” of Board precedent support its characterization of the “suf- ficiently distinct” element, the dissent cites to no Board precedent (aside from PCC-Boeing itself) that identifies the excluded employees’ interests in the outcome of the election as playing a role in the Board’s unit determination framework—much less any case holding that these inter- ests are the key consideration when determining whether the bargaining interests of the petitioned-for unit are “suf- ficiently distinct” from those of the excluded employees. Similarly, judicial precedent provides no support for the dissent’s interpretation of the “sufficiently distinct” 76 See Black & Decker Mfg. Co., supra, at 828. 77 While Circuit Court decisions such as Constellation Brands explic- itly highlight “arbitrariness” as the key concern in evaluating whether a unit is “sufficiently distinct,” the dissent mischaracterizes Specialty Healthcare as a whole by suggesting that it requires the Board to approve any unit that is not irrational or arbitrary. As we have explained, the overwhelming community of interest standard is but one element of the Board’s overall test: if the petitioned-for unit does not possess an internal community of interest that renders it suitable for the purposes of collec- tive bargaining, then it is not appropriate, even if there is a rational basis for the exclusion of certain classifications. 78 See Constellation Brands, supra, at 794–795 (internal quotations omitted). See also Nestle Dreyer’s Ice Cream Company v. NLRB, supra, 821 F.3d at 499 (observing that the Board’s unit determination is defi- cient if it “fails to guard against arbitrary exclusions”). 79 If no party contends that the unit is insufficiently distinct—i.e., that the unit is inappropriate absent the inclusion of additional employees— then there is no reason for the Board to analyze the distinctions between the petitioned-for and excluded employees. In fact, the Board correctly recognized as much under the PCC-Boeing test. See Macy’s West Stores, Inc., 32–RC–246415 (May 27, 2020) (not reported in Board volumes) (explaining that the “sufficiently distinct” analysis is only applicable “when a party asserts that the smallest appropriate unit must include em- ployees excluded from the petitioned-for unit”). 80 The dissent is therefore incorrect to suggest that the “overwhelming community of interest” standard and the Board’s “traditional commu- nity-of-interest factors” represent two independent “steps” of the Spe- cialty Healthcare framework, as opposed to components of one inte- grated analysis (the “sufficiently distinct” element). Although both the “sufficiently distinct” element and the “internal community of interest” element use the “traditional community of interest factors,” they are sep- arate inquiries. To determine whether a unit is “sufficiently distinct,” the element. To the contrary, the Circuit Court cases relied upon by the dissent explicitly frame the “sufficiently dis- tinct” inquiry as a question of arbitrariness,77 explaining that the Board must thoroughly evaluate the differences and similarities between the petitioned-for and excluded employees in order to avoid “rubber stamping” units based on “arbitrary lines of demarcation” or “meager differ- ences” between the petitioned-for and excluded employ- ees.78 And this is precisely what the “overwhelming com- munity of interest” standard does. If a party asserts that additional employees must be in- cluded in the unit,79 then the Regional Director does not presume that the petitioned-for unit is appropriate absent these employees; rather, the Regional Director must uti- lize the Board’s traditional community of interest factors to determine whether there is a rational basis for the ex- clusion in the first instance.80 That is to say, the Board’s analysis “necessarily proceeds to a further determination whether the interests of the group sought are sufficiently distinct from those of other employees to warrant the es- tablishment of a separate unit.”81 If the Regional Director determines that there is no rational basis for the exclusion because there is an overwhelming community of interest between the two groups, then the unit is not “sufficiently distinct,” and therefore, not appropriate absent the Board applies the “overwhelming community of interest” standard by examining the distinctions between the petitioned-for and excluded em- ployees to ascertain whether there is a rational basis for any exclusions. In contrast, the “internal community of interest” element evaluates whether the petitioned-for employees share sufficient common interests to engage in collective bargaining. Although some of the circuit courts have characterized the Board’s unit determinations as incorporating a burden-shifting framework (see, e.g., Blue Man Vegas, supra, at 421–422), the Board cannot and does not find a unit “appropriate” unless it determines that the petitioned-for em- ployees are “sufficiently distinct” from the excluded employees on com- munity-of-interest grounds. The Board has never, either as part of its “traditional” unit determination jurisprudence or in applying Specialty Healthcare, declared a petitioned-for unit to be “prima facie appropriate” or “presumptively appropriate” after finding that it possesses an internal community of interest and is readily identifiable as a group. Rather, the Board has simply moved on to the next element of the analysis—deter- mining whether the unit is “sufficiently distinct” under the overwhelm- ing community of interest standard. See, e.g., Macy’s Inc., 361 NLRB 12, 20–23 (2014), enfd. 824 F.3d 557 (5th Cir. 2016), cert. denied 137 S. Ct. 2265 (2017); Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015, 2017–2019 (2011); DTG Operations, Inc., 357 NLRB 2122, 2127– 2128 (2011). We believe that this approach is consistent with the con- cerns articulated in cases such as Constellation Brands—which empha- size that the Board must consider the distinctions between the petitioned- for and excluded employees in order to prevent arbitrary exclusions— and is fully justified by the statutory considerations discussed above. 81 Wheeling Island Gaming, 355 NLRB 637, 637 fn. 2 (2010) (em- phasis and citation omitted). We reject any interpretation of Wheeling Island Gaming that would create inconsistency with Specialty Healthcare or with today’s decision, and, even if such an interpretation were correct, then we would limit Wheeling Island Gaming to its facts. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 inclusion of additional employees. Simply put, the Re- gional Director cannot approve a petitioned-for unit based on “arbitrary lines of demarcation” under the overwhelm- ing community of interest standard, nor is the Regional Director permitted to approve units “without any consid- eration of whether the interests of the included employees are sufficiently distinct from those of excluded employ- ees,” as the dissent contends.82 Although the “overwhelm- ing community of interest” standard properly creates a high bar for the party seeking to demonstrate that the unit is not “sufficiently distinct,” that is not equivalent to a “presumption” of appropriateness, as the dissent repeat- edly suggests. Nor does Specialty Healthcare create an “insurmountable” standard, as the cases applying it demonstrate.83 In sum, the dissent has failed to demon- strate that the “overwhelming community of interest” standard is somehow contrary to Board or appellate prec- edent.84 The dissent also mistakenly contends that PCC-Boeing is preferable to Specialty Healthcare as a matter of statu- tory policy. In this regard, the dissent focuses on two “central policies of the Act” that it believes underscore the approach articulated in PCC-Boeing: “ensuring to em- ployees their rights to self-organization and freedom of choice, and fostering industrial peace and stability through collective bargaining.” This first “central policy” argument in the dissent is merely a reframing of the same faulty premise underlying PCC Structurals: that the Board should, under the guise of protecting the rights of excluded employees, effectively veto the petitioning employees’ choice of an appropriate unit by insisting on what it deems to be the optimal unit.85 According to the dissent, the Board must protect the ex- cluded employees’ interests that might be “collaterally controlled” by unionization. But this is not the Board’s role under Section 9 of the Act. Rather—so long as the petitioned for unit is an appropriate unit (and regardless of 82 The dissent argues that Specialty Healthcare is “susceptible” to a contrary interpretation. Our decision today, however, is clear as to how the Specialty Healthcare framework should be applied and what each element does (and does not) require. 83 See Rhino Northwest, LLC v. NLRB, 867 F.3d at 101 (observing that units have been found inappropriate under Specialty Healthcare in Odwalla, Inc., 357 NLRB 1608 (2011), and A.S.V., Inc., 360 NLRB 1252 (2014)). See also K&N Engineering, 365 NLRB No. 141 (2017) (finding the petitioned-for unit inappropriate under Specialty Healthcare). 84 Although the dissent frequently cites to the Fourth Circuit’s deci- sion in NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir. 1995), the Fourth Circuit has held that Specialty Healthcare is consistent with Lundy. See Nestle Dreyer’s Ice Cream Company v. NLRB, supra, 821 F.3d at 499. Specialty Healthcare is also fully consistent with Nestle Dreyer’s Ice Cream. As we have discussed at length above, the Board does not declare a unit appropriate (much less presumptively appropri- ate) under Specialty Healthcare before evaluating the distinctions be- tween the petitioned-for and excluded employees and determining that whether it is the most optimal unit)—the employees must determine for themselves which employees are included in or excluded from the unit. Section 7 gives both the pe- titioning employees and the excluded employees the same toolbox of rights that they can use to protect their interests in the workplace, including engaging in collective-bar- gaining and other protected concerted activity, or refrain- ing from such activity. Under Specialty Healthcare, the excluded employees retain the “fullest freedom” to utilize every single one of these Section 7 tools to protect their interests in the event that their coworkers attempt to or- ganize. In contrast, PCC-Boeing disregards the “fullest freedom” of the organizing employees by placing unnec- essary obstacles to representation in the unit of their choice. The second “central policy” relied upon by the dissent forms the basis of a novel argument in favor of PCC- Boeing: that PCC-Boeing gives greater weight to the in- terests of the excluded employees so that the Board can facilitate “efficient and stable collective bargaining.” No- tably, although PCC Structurals and Boeing both con- tained general citations to Kalamazoo Paper Box, neither case framed the “sufficiently distinct” inquiry in terms of evaluating whether the petitioned-for unit could engage in effective collective bargaining absent the excluded em- ployees; rather, both decisions focused exclusively on evaluating the Section 7 interests of excluded employees. Although PCC-Boeing indicated that the Board should evaluate the employees’ distinct interests “in the context of collective bargaining,” this empty directive does not substitute for an explanation of why these collective bar- gaining interests are relevant to the “sufficiently distinct” requirement or how they should be weighed.86 At any rate, the dissent’s arguments on this point are contradictory. On the one hand, the dissent acknowledges that an internal community of interest among the peti- tioned-for employees is necessary to facilitate effective there is a rational basis for any exclusions under the “overwhelming com- munity of interest” standard. 85 Contrary to the dissent’s contention, we do not reinstate the “over- whelming community of interest” standard to help unions win more elec- tions—indeed, the data shows that the union win rate did not change un- der Specialty Healthcare. See Br. AFL–CIO, Ex. A, Report of Professor John-Paul Ferguson. Of course, we reject any implication in the dissent that there is something inherently suspect about the petitioned-for unit, or that an employer’s preference for a different unit—perhaps one it be- lieves will better suit its interests or achieve its desired outcome—is en- titled to any weight in the Board’s unit determination. 86 The same is true of the Board’s decision in Starbucks, 371 NLRB No. 71 (2022). Although the Board determined that the petitioned-for and excluded employees did not share sufficient collective-bargaining interests requiring a multi-store unit, the decision contained no analysis of whether the exclusion of certain stores would have an effect on the unit’s ability to engage in effective collective bargaining. AMERICAN STEEL CONSTRUCTION, INC. 13 collective bargaining. Thus, our dissenting colleagues ob- serve—in agreement with Allied Chemical—that a cohe- sive and homogenous unit reduces internal conflicts and prevents the interests of a minority group from being sub- merged by the majority. But, on the other hand, the dis- sent suggests that even where the petitioned-for unit is co- hesive and homogenous, the Board can only ensure “effi- cient and stable collective bargaining” by mandating the inclusion of additional employees whose interests are as- sertedly “closely aligned” with the collective-bargaining interests of the petitioned-for employees. Of course, the inclusion of such employees necessarily threatens to make the unit less cohesive and therefore less optimal from a collective-bargaining standpoint. Crucially, the dissent makes no effort to explain how permitting the exclusion of employees with assertedly “closely aligned” (but ulti- mately distinguishable) interests undermines collective bargaining, disrupts labor stability, creates “unworkable situations in the workplace,” or precludes parties from reaching collective-bargaining agreements, given that the unit is cohesive and homogenous without the excluded employees. Indeed, both the Board and the courts have regularly rejected such arguments in approving smaller units that are segments of a greater whole.87 Nor does the dissent acknowledge that, under the “over- whelming community of interest” standard, the Board does mandate the inclusion of additional employees under circumstances where the differences between the peti- tioned-for and excluded employees are so minimal that it would be truly irrational to engage in the process of col- lective bargaining without them. And this is all that is re- quired: once again, the dissent ignores that the Board’s role is solely to determine whether the unit is an appropri- ate unit for bargaining, not the optimal one. Accordingly, we are unpersuaded by the dissent’s argu- ments that PCC-Boeing is preferable to Specialty Healthcare from a policy or statutory standpoint. We do not claim that Specialty Healthcare is the only permissible unit determination framework under the Act, or that every prior decision of the Board, over many decades, can be 87 See Haag Drug, supra, at 878 (observing that “though chainwide uniformity may be advantageous to the employer administratively, it is not a sufficient reason in itself for denying the right of a separate, homo- geneous group of employees, possessing a clear community of interest, to express their wishes concerning collective representation”); Macy’s, Inc. v. NLRB, 824 F.3d at 566 (rejecting the argument that workers or businesses would suffer “grave consequences” because of the Board ap- proving a departmental unit under Specialty Healthcare). 88 See Kindred Nursing Centers East, LLC v. NLRB, supra, 727 F.3d at 563 (“Because the overwhelming-community-of-interest standard is based on some of the Board’s prior precedents, has been approved by the District of Columbia Circuit, and because the Board did cogently explain its reasons for adopting the standard, the Board did not abuse its discre- tion in applying this standard in Specialty Healthcare.”). completely harmonized with Specialty Healthcare. Ra- ther, after careful consideration, we choose the Specialty Healthcare framework because it is broadly consistent with the Board’s historical treatment of the “sufficiently distinct” element (as the courts have recognized), and, most importantly, because it best serves the goals of the Act as reflected in Section 9.88 E. Return to Specialty Healthcare In light of PCC-Boeing’s extensive faults—its cumber- some and confusing approach to the “sufficiently distinct” element, its detrimental effects on the rights of the peti- tioning employees, and its hollow statutory reasoning— we have decided to overrule PCC Structurals and Boeing and reinstate the Specialty Healthcare test.89 Accordingly, the Board will once again approve a peti- tioned-for “subdivision” of employee classifications if the petitioned-for unit: (1) shares an internal community of in- terest; (2) is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct. Of course, the Board need not address each element in every case: if a particular element is not disputed, it need not be adjudicated. But if a party contends that the petitioned-for unit is not sufficiently distinct—i.e., that the smallest ap- propriate unit contains additional employees—then the Board will apply its traditional community-of-interest fac- tors to determine whether there is an “overwhelming com- munity of interest” between the petitioned-for and ex- cluded employees, such that there is no rational basis for the exclusion. If there are only minimal differences, from the perspective of collective bargaining, between the peti- tioned-for employees and a particular classification, then an overwhelming community of interest exists, and that classification must be included in the unit. As the Board noted in Specialty Healthcare, this test does not disturb or displace any preexisting rules or presumptions applicable to specific industries or occupations.90 Having reinstated Specialty Healthcare, we apply it ret- roactively to all pending cases.91 With respect to the 89 We observe that, aside from establishing the Board’s general unit determination test for “subdivisions,” Specialty Healthcare also over- ruled Park Manor Care Center, 305 NLRB 872 (1991), in which the Board addressed the standard for determining units in nonacute health care facilities (like the employer facility involved there). PCC Structur- als then reinstated Park Manor with no discussion, simply stating that it was doing so for “the reasons stated by former Member Hayes in his dissenting opinion in Specialty Healthcare.” PCC Structurals, supra, slip op. at 1 fn. 3. However, PCC Structurals did not involve a unit at a nonacute healthcare facility, and accordingly, we view PCC Structurals’ reinstatement of Park Manor as dicta that is not binding on the Board. 90 357 NLRB at 946 fn. 29. 91 In this regard, we observe that the Board’s “usual practice is to apply new policies and standards retroactively ‘to all pending cases in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 present dispute, we acknowledge that our reinstatement of the Specialty Healthcare standard alters the burden placed on the Employer in terms of litigating whether the peti- tioned-for unit is appropriate without the inclusion of ad- ditional employees—i.e., whether the unit is “sufficiently distinct.” In the interests of fairness, we will therefore re- mand the case to the Regional Director for action con- sistent with our decision today and the standard articulated therein, including reopening the record, if necessary. ORDER The Regional Director’s Decision and Order is re- versed, the petition in Case 07–RC–269162 is reinstated, and the case is remanded to the Regional Director for fur- ther appropriate action consistent with this Decision, in- cluding reopening the record, if necessary, and analyzing the appropriateness of the unit under the standard articu- lated herein, and for the issuance of a supplemental deci- sion. Dated, Washington, D.C. December 14, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBERS KAPLAN AND RING, dissenting: Collective bargaining under the National Labor Rela- tions Act is premised on the existence of an appropriate bargaining unit within which bargaining will take place. Appropriate for what purpose? Section 9(a) of the Act an- swers that question. Repeating a key phrase, Section 9(a) specifies that bargaining units must be appropriate “for the purposes of collective bargaining,” and it further specifies whatever stage.’” SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)). In- deed, “[t]he Board’s established presumption in representation cases like this one is to apply a new rule retroactively.” BFI Newby Island Recy- clery (Browning-Ferris), 362 NLRB 1599 (2015), affd. in part and revd. in part 911 F.3d 1195 (D.C. Cir. 2018). 1 Sec. 9(a) relevantly states: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for that the representative of such a unit shall be the exclusive representative of all the employees in that unit “for the purposes of collective bargaining.”1 To ensure that the mandate of Section 9(a) is fulfilled, Section 9(b) of the Act directs the Board to decide, in each case, “the unit appro- priate for the purposes of collective bargaining.” And Section 9(b) adds a second theme: in making this deter- mination, the Board is to “assure to employees the fullest freedom in exercising the rights guaranteed by this Act.”2 Accordingly, in determining whether a particular unit is appropriate, the Board must be guided by two central pol- icies of the Act: ensuring to employees their rights to self- organization and freedom of choice, and fostering indus- trial peace and stability through collective bargaining. Kalamazoo Paper Box Co., 136 NLRB 134, 137 (1962). These two policies follow directly from Section 9(b) of the Act, which requires the Board to assure employees their “fullest freedom in the exercise of” their Section 7 rights and to ensure that the unit is “appropriate for the purposes of collective bargaining” (emphasis added). Congress also specified several limitations on the Board’s unit de- terminations in Section 9 of the Act. Most pertinently here, Section 9(c)(5) prohibits the Board from making “the extent to which the employees have organized” the controlling factor in unit determinations. Consistent with these principles, the Board’s appropri- ate-unit determinations turn on whether the employees in a particular unit share a “community of interest.” United Operations, Inc., 338 NLRB 123, 125 (2002). The tradi- tional community-of-interest factors long considered by the Board in making this determination are whether the employees are organized into a separate de- partment; have distinct skills and training; have distinct job functions and perform distinct work, including in- quiry into the amount and type of job overlap between classifications; are functionally integrated with the Em- ployer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised. Id. at 123. When assessing these factors, the Board such purposes, shall be the exclusive representatives of all the employ- ees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em- ployment… 2 Sec. 9(b) relevantly states: The Board shall decide in each case whether, in order to assure to em- ployees 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 AMERICAN STEEL CONSTRUCTION, INC. 15 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 em- ployees fairly can be said to possess employment condi- tions or interests “in common.” Our inquiry—though perhaps not articulated in every case—necessarily pro- ceeds to a further determination whether the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a sepa- rate unit. Wheeling Island Gaming, 355 NLRB 637, 637 fn. 2 (2010) (emphasis and citation omitted). When a union petitions for an election in a particular unit, the Board’s inquiry begins with the petitioned-for unit. If that unit is appropriate, then the inquiry into the appropriate unit ends. Boeing Co., 337 NLRB 152, 153 (2001). In some cases, however, a party asserts that the petitioned-for unit is inappropriate, and that the smallest appropriate unit must also include additional employees. In PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Company, 368 NLRB No. 67 (2019), the Board articulated a framework for conducting this inquiry. Based on the traditional test for determining appropriate units, the PCC/Boeing framework first considers whether the employees in a proposed unit share an internal com- munity of interest. Second, the Board considers whether the interests of employees within the proposed unit are sufficiently distinct from the interests of those excluded from the proposed unit. Third, the Board considers any applicable guidelines that the Board has established for the specific industry involved with regard to appropriate unit configurations. Boeing, 368 NLRB No. 67, slip op. at 3. The PCC/Boeing framework effectuates the statutory policies on which unit determinations must be based. First, it gives appropriate weight to employees’ right to self-organize by ensuring that the employees in the peti- tioned-for unit share an internal community of interest. Self-organization among employees with disparate inter- ests or infrequent contact would be challenging at best. Indeed, the interests of employees in the unit proposed by the union may be so disparate that directing an election in that unit would effectively nullify the employees’ right to self-organization. In the event that employees do choose union representation, the union’s ability to successfully represent them would be severely limited if they did not share common interests.3 Moreover, if a unit is not cohe- sive, a minority subgroup’s interests may be sacrificed to 3 See Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 172–173 (1971) (The Board must ensure that the proposed unit groups together “only employees who have substantial mutual interests in wages, hours, and other conditions of employment. Such a mutuality of the interests of other unit employees, and this would in- fringe on the subgroup’s Section 7 rights.4 Second, the PCC/Boeing framework also gives due con- sideration to whether the interests of the employees in the proposed unit are sufficiently distinct from those of other employees to warrant a separate unit. This vital inquiry ensures that the Board’s unit determinations respect the Section 7 rights of employees excluded from the proposed unit. PCC Structurals, 365 NLRB No. 160, slip op. at 8. The “sufficiently distinct” inquiry also ensures that appro- priate-unit determinations will result in a unit that is work- able “for the purposes of collective bargaining,” as Section 9(b) mandates. As the Board explained long ago, [b]ecause the scope of the unit is basic to and permeates the whole of the collective-bargaining relationship, each unit determination, in order to further effective expres- sion of the statutory purposes, must have a direct rele- vancy to the circumstances within which collective bar- gaining is to take place. For, if the unit determination fails to relate to the factual situation with which the par- ties must deal, efficient and stable collective bargaining is undermined rather than fostered. Kalamazoo Paper Box, 136 NLRB at 137. A realistic ap- praisal of a petitioned-for unit in light of the factual situation with which the parties would have to deal were a majority of that unit to choose representation necessarily requires the Board to carefully consider the extent to which the interests of employees excluded from that unit overlap with those of employees in the proposed unit. In determining whether the interests of employees in the petitioned-for unit are sufficiently distinct from those of excluded employees, the PCC/Boeing framework requires the Board to consider whether “‘excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.’” Boeing, 368 NLRB No. 67, slip op. at 4 (quoting Constel- lation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d 784, 794 (2d Cir. 2016) (emphasis in Constellation Brands)). As the Board explained in Boeing, this inquiry does not require that distinct interests must outweigh sim- ilarities by any particular margin, nor does it contemplate that a unit would be found inappropriate merely because a different unit might be more appropriate. Rather, “what is required is that the Board analyze the distinct and similar interests and explain why, taken as a whole, they do or do not support the appropriateness of the [proposed] unit.” Id., slip op. at 4. “Merely recording similarities or interest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a function- ally distinct minority group of employees from being submerged in an overly large unit” (citation and internal quotation marks omitted)). 4 Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 differences between employees does not substitute for an explanation of how and why these collective-bargaining interests are relevant and support the conclusion. Explain- ing why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation.” Constellation Brands, 842 F.3d at 794–795 (quoted in Boeing, supra, slip op. at 4). For most of its history, the Board has applied a standard that affords comparable weight to a petitioned-for unit’s internal community of interest and to the distinctness of those interests from those of excluded employees. In Spe- cialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (Specialty Healthcare),5 however, the Board abruptly departed from its traditional standard. Specialty Healthcare replaced that standard with one that gave overriding weight to whether the petitioned-for em- ployees have a community of interest with each other. If those employees “are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)” and share a community of interest with each other, Specialty Healthcare compels a finding that the unit is appropriate unless the party asserting that the unit must include addi- tional employees shows that those employees “share an overwhelming community of interest” with the petitioned- for employees. Id. at 944–946. Under this framework, the question of whether the interests of excluded employees are truly distinct from those of employees in the proposed unit is at best a secondary consideration. Indeed, under Specialty Healthcare, the similarity of excluded employ- ees’ interests with those of included employees is simply disregarded unless the interests of included and excluded employees “‘overlap almost completely.’” Id. at 944.6 Overruling PCC Structurals and Boeing, our colleagues reinstate Specialty Healthcare in today’s decision. Be- cause they offer no persuasive justification for this step, we respectfully dissent. Discussion To define the precise area of disagreement between our- selves and our colleagues in the majority, we begin by ob- serving that the majority agrees with some of the premises on which the PCC/Boeing framework is based. First, our colleagues agree that a proposed unit must “share an inter- nal community of interest.” Boeing, 368 NLRB No. 67, slip op. at 3. Second, our colleagues agree that the Board’s unit determinations must take into account “guidelines that the Board has established for specific industries with regard to appropriate unit configurations.” Id., slip op. at 5 Enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). 4. Third, the majority also agrees that the employees in the proposed unit must have interests “sufficiently dis- tinct” from those of employees excluded from the pro- posed unit. That is, the majority agrees that, in their words, “even if the petitioned-for unit exhibits a mutuality of interests and has some coherent organizing principle, it may nonetheless be inappropriate because it excludes em- ployees who cannot rationally be separated from the peti- tioned-for employees on community-of-interest grounds.” Our colleagues’ disagreement with the PCC/Boeing framework concerns how to determine whether the inter- ests of included employees are “sufficiently distinct” from those of excluded employees. In making this determina- tion, only the Specialty Healthcare “overwhelming com- munity of interest” standard will do for our colleagues. As they candidly acknowledge, the interests of the petitioned- for and excluded employees must “overlap almost com- pletely” to mandate including the latter in the unit under that standard. The majority contends that Supreme Court precedent supports this standard, that it provides a worka- ble standard for making unit determinations while the PCC/Boeing framework does not, and that their preferred standard better effectuates the policies of the Act. We re- spectfully disagree in all respects. A. The “Overwhelming Community of Interest” Stand- ard Is Unsuitable for Appropriate-Unit Determinations. The “overwhelming community of interest” standard was developed by the Board for the purpose of deciding whether a particular group of unrepresented employees should be added to an existing unit by accretion—that is, without an election. NV Energy, Inc., 362 NLRB 14, 16 (2015). The Board appropriately applies a “restrictive pol- icy” in deciding whether to accrete employees to an exist- ing unit because doing so deprives the accreted employees of the right to choose for themselves whether to be repre- sented by a union for the purpose of collective bargaining. Id. Accordingly, the Board finds “a valid accretion only when the additional employees have little or no separate group identity and thus cannot be considered to be a sepa- rate appropriate unit and when the additional employees share an overwhelming community of interest with the preexisting unit to which they are accreted.” Safeway Stores, Inc., 256 NLRB 918, 918 (1981) (emphasis added). This “restrictive” standard, applicable in accretion cases, is identical to the “overwhelming community of in- terest” standard that the Board applied to unit determina- tions under Specialty Healthcare and that our colleagues 6 Quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir. 2008). AMERICAN STEEL CONSTRUCTION, INC. 17 reinstate today.7 As the majority states, this standard re- quires the party objecting to the proposed unit on the ground that the smallest appropriate unit must include ad- ditional employees to show that “there is no rational basis” for excluding the disputed employees because there are “only minimal differences” between excluded and in- cluded employees’ interests—or, in an even more forceful articulation of the standard our colleagues adopt, because the interests of the employees the objecting party seeks to add are “near-indistinguishable” from those of the em- ployees within the proposed unit. In our view, it is irra- tional to apply to unit determinations made for the purpose of directing an election the same standard used to decide whether to include employees in a unit without an elec- tion. To the contrary, as the Fourth Circuit recognized more than 25 years ago, applying the “overwhelming community of interest” standard outside of the accretion context “effectively accord[s] controlling weight to the extent of union organization . . . . because ‘the union will propose the unit it has organized.’” NLRB v. Lundy Pack- ing Co., 68 F.3d 1577, 1581 (4th Cir. 1995) (quoting Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898, 900 (7th Cir. 1991)). As noted above, this is specifically pro- hibited by Section 9(c)(5) of the Act.8 As the Board further explained in PCC Structurals, ap- plying the “overwhelming community of interest” stand- ard to initial unit determinations also improperly under- mines the Board in fulfilling its statutory duty, under Sec- tion 9(b) of the Act, to “assure” to employees “in each case” their “fullest freedom” in exercising their Section 7 rights. 365 NLRB No. 160, slip op. at 6. It does so be- cause it sharply circumscribes the Board’s role. Rather than conduct a thorough analysis of shared and distinct in- terests between included and excluded employees, the Board is limited by the “overwhelming community of in- terest” standard, and by the assignment of the burden of proof to the objecting party, to determining whether the objecting party has shown that the interests of excluded employees are nearly indistinguishable from those of in- cluded employees. Our colleagues find this unproblem- atic. They focus on the Section 7 rights of the petitioned- for employees, to the near exclusion of the rights of ex- cluded employees. They say that in a subsequent repre- sentation case, excluded employees may petition for sep- arate representation, or to be added to the existing unit. 7 Our colleagues deny that Specialty Healthcare “improperly im- ported” the accretion standard into initial unit determinations, asserting that accretion is found only if the excluded employees also have little or no separate group identity and could not be an appropriate unit on their own. But this is a distinction without a difference, as Specialty Healthcare imposes a similar burden on parties seeking to challenge a petitioned-for unit. More realistically, our colleagues admit that the But in doing so, they fail to honor Congress’s requirement that the Board assure “employees”—all employees, both those included in and those excluded from a proposed unit—”in each case”—not some employees in one case and other employees later on, if there ever is a subsequent case—the “fullest freedom” in exercising their Section 7 rights. B. No Precedent Compels the “Overwhelming Commu- nity of Interest” Standard, Which Is Inconsistent with the Traditional Community of Interest Inquiry. No court has rejected the PCC/Boeing framework or questioned it in any way. Nor has any court held that the Act compels the Board to apply the “overwhelming com- munity of interest” standard. Indeed, the application of that standard to initial unit determinations has dubious an- tecedents at best. The Board applied it in Lundy Packing Co., 314 NLRB 1042 (1994), where a divided Board found that a petitioned-for unit of production and mainte- nance employees was appropriate, excluding quality as- surance technicians. As Member Stephens persuasively noted in dissent, the Lundy Packing majority cited no prior case in which that standard had been applied to an initial unit determination. Id. at 1046. The Fourth Circuit agreed, properly recognizing that the “overwhelming community of interest” standard was a “novel legal stand- ard” in this context. NLRB v. Lundy Packing Co., 68 F.3d at 1577. The Fourth Circuit was correct that the Board had not previously applied the “overwhelming community of in- terest” standard in making initial unit determinations but instead had used other formulations, a point our col- leagues effectively concede. See, e.g., Colorado National Bank of Denver, 204 NLRB 243, 243 (1973) (“[T]he unit sought is too narrow in scope in that it excludes employees who share a substantial community of interest with em- ployees in the unit sought.”); Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967) (“[T]ruckdrivers enjoy a suf- ficient community of interest separate and apart from the mechanics to warrant finding them to be a unit appropriate for collective bargaining.”). Neither did the Board apply an “overwhelming community of interest” standard in cases decided after Lundy Packing. See, e.g., United Rent- als, Inc., 341 NLRB 540, 541 (2004) (finding that ex- cluded employees share such a “substantial community of interest with the petitioned-for employees that they must accretion standard and Specialty Healthcare are “broadly similar polic[ies].” 8 The Fourth Circuit subsequently upheld Specialty Healthcare as consistent with Lundy Packing in Nestle Dryers Ice Cream Co. v. NLRB, 821 F.3d 489, 500 (4th Cir. 2016). However, the court’s decision lends no real support to the majority’s position for the reasons explained be- low. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 be included in the unit”); Engineered Storage Products Co., 334 NLRB 1063, 1063 (2001) (“[T]he test is whether the community of interest they share with [employees in the proposed unit] is so strong that it requires or mandates their inclusion in the unit.”). At best, then, the “over- whelming community of interest” standard’s use for initial unit determinations had its origin in an unexplained depar- ture from precedent. Undeterred, the Board applied that standard again in the representation case reviewed by the Court of Appeals for the District of Columbia Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), a case on which Specialty Healthcare and the majority heavily rely. In Blue Man Vegas, the D.C. Circuit affirmed a Board deci- sion finding that a unit of Las Vegas stage crew employees was an appropriate unit notwithstanding the exclusion of musical instrument technicians (MITs) who worked on the same show. As summarized by the court, the regional di- rector found that the petitioned-for unit was appropriate— indeed, that no party had contended otherwise—and then proceeded to find that the inclusion of the MITs was not required because they did not share an “overwhelming community of interest” with the stage crew employees. Id. at 423. In enforcing that decision, the court did not hold that the Board must apply that standard, nor did it have before it the question of whether that standard should ap- ply when a party does contend that the petitioned-for unit is inappropriate.9 Accordingly, Blue Man Vegas simply cannot bear the weight that Specialty Healthcare and our colleagues place on it.10 The Supreme Court precedent cited by our colleagues is not to the contrary. As noted above, the Supreme Court has recognized that the Board’s unit determinations must ensure that the employees in the unit share “substantial mutual interests.” Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. at 172. But the issue before the Court in that case was whether the Board had properly found that retirees were part of a bargaining unit of active employees such that changes to retiree health care benefits were a mandatory subject of bargaining. The Court’s 9 Similarly, the application of the “overwhelming community of in- terest” standard to initial unit determinations was upheld in Nestle Drey- ers Ice Cream Co. v. NLRB, 821 F.3d at 500, and Macy’s, Inc. v. NLRB, 824 F.3d 557, 568 (5th Cir. 2016), but only after a unit first had properly been found appropriate based on a consideration of whether the interests of the included employees were “sufficiently distinct” from those of other employees. As discussed below, Specialty Healthcare is at the very least susceptible to an interpretation that effectively deems petitioned-for units presumptively appropriate without meaningfully considering whether the interests of included employees truly are sufficiently distinct from the interests of excluded employees. Indeed, the majority admits that under Specialty Healthcare, the Board determines whether a unit is holding that retirees did not share the required mutual in- terests with active employees says little about whether particular active employees belong in the same unit as other active employees because they do share mutual in- terests, much less about the standard to be applied in mak- ing that determination. Decades of precedent establish that unit determinations must prevent a group of employ- ees whose interests sufficiently align with those of em- ployees in a petitioned-for unit from being improperly ex- cluded from the unit, and nothing in the Court’s opinion in Allied Chemical is to the contrary. The majority contends that “individuals’ selection of those with whom they wish to join in a common endeavor” is a key element of freedom of association, quoting Rob- erts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). But the majority neglects to acknowledge the actual holding in Roberts, in which the Supreme Court found that a state human rights act was lawfully applied to prohibit an or- ganization from refusing to allow women to join. Accord- ingly, the Court held that the free association rights of Jay- cees’ members were not “absolute” but, rather, may be in- fringed upon in light of other compelling governmental in- terests. Id. at 623. Here, of course, the employees’ free- dom of association must be considered in the context of Section 9(b) and 9(c)(5) of the Act, in which Congress mandated that the Board must decide in “each case” whether a unit is appropriate “for the purposes of collec- tive bargaining” and, most importantly, that the extent of organizing shall not be controlling. Citing American Hospital Association v. NLRB, 499 U.S. 606, 609–610 (1991), the majority stresses that “the initiative in selecting an appropriate unit resides with the employees.” Nothing in PCC Structurals or Boeing dis- puted that proposition. In practice, however, petitions in representation cases are typically filed by unions, and so it is they who decide the scope of the petitioned-for unit they seek to represent—and “‘the union will propose the unit it has organized.’” NLRB v. Lundy Packing, 68 F.3d at 1581 (quoting Laidlaw Waste Systems v. NLRB, 934 F.2d at 900). In any event, it does not follow from the fact that the initiative resides with employees or unions that the “sufficiently distinct” by “examining the distinctions between the peti- tioned-for and excluded employees to ascertain whether there is a ra- tional basis for any exclusions,” applying the “overwhelming community of interest” standard. And Specialty Healthcare indisputably places the burden of proving an overwhelming community of interest on the party opposing the unit. 10 We further note that the unit at issue in Blue Man Vegas likely would have been found appropriate under any permissible standard. Among other things, the MITs shared few relevant interests with the stage crew employees, and the two groups of employees were customar- ily organized in different units in that industry. AMERICAN STEEL CONSTRUCTION, INC. 19 unit they choose must be presumed appropriate or that the party opposing it must sustain the all-but-insurmountable burden of showing that the interests of excluded employ- ees are “near[ly] indistinguishable” from those of included employees. Our colleagues say that Section 9(c)(5) does not prevent the Board from considering the extent of organizing as one factor among others in its unit determinations, citing NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–442 (1965). But neither the Act nor the Court’s de- cision provides any support for our colleagues’ elevation of that factor so that it is, for all practical purposes, con- trolling—and Section 9(c)(5) does prohibit that.11 Reviewing courts have, however, repeatedly rejected the notion that a unit could be found appropriate without any consideration of whether the interests of included em- ployees are sufficiently distinct from those of excluded employees. See Constellation Brands v. NLRB, 842 F.3d 784, 792 (2d Cir. 2016); Nestle Dreyer’s Ice Cream Com- pany v. NLRB, 821 F.3d 489; FedEx Freight, Inc. v. NLRB, 832 F.3d 432, 441 (3d Cir. 2016). As these courts implic- itly acknowledge, addressing sufficient distinctness only at step two of the analysis, where the overwhelming-com- munity-of-interest standard is applied, and not at step one, where the traditional community-of-interest factors are applied, would represent a significant departure from the Board’s traditional test discussed above. Cases applying Specialty Healthcare have nevertheless done just that. See, e.g., DPI Secuprint, Inc., 362 NLRB 1407, 1410 (2015) (finding that “the employees in the petitioned-for unit are a readily identifiable group who share a commu- nity of interest, and that the Employer has not demon- strated that the offset-press employees share an over- whelming community of interest with the petitioned-for employees”); Macy’s Inc., 361 NLRB 12, 32–44 (2014) (considering “distinctions between the petitioned-for em- ployees and other selling employees” only as part of em- ployer’s rebuttal burden under the overwhelming commu- nity-of-interest standard), enfd. 824 F.3d 557 (5th Cir. 11 Citing a phrase from Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996), the majority also makes the irrelevant point that it is employ- ers who are invariably the ones seeking to add additional employees to a petitioned-for unit and that employers cannot be trusted to have the unit employees’ Sec. 7 interests in mind. See id. at 790 (finding employer unlawfully refused to execute a collective-bargaining agreement due to professed doubts about the union’s majority status, and stating that “the Board is entitled to suspicion when faced with an employer’s benevo- lence as its workers’ champion”). First, an employer’s motives for seek- ing to add employees to a petitioned-for unit are irrelevant to the Board’s duty to evaluate the appropriateness of a unit in each case. Second, the motivations of an employer provide no basis for eliminating the require- ment that the extent of organizing shall not be controlling. Third, the majority’s generalized expression of hostility toward employers, based on a phrase lifted from an unfair labor practice case involving a specific 2016), cert. denied 137 S. Ct. 2265 (2017); Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015, 2017– 2018 (2011) (same); DTG Operations, Inc., 357 NLRB 2122, 2126 (2011) (finding that petitioned-for unit “is an appropriate bargaining unit—subject to the Employer’s proving that the unit must include additional employees” because the petitioned-for employees “unmistakably share a community of interest”). This is hardly surprising, since Specialty Healthcare ef- fectively deems a petitioned-for unit presumptively appro- priate if an internal community of interest is shown, and it takes account of whether the included employees have in- terests sufficiently distinct from those of excluded em- ployees only if a party objecting to the unit proves that excluded employees’ interests are not sufficiently distinct under the “overwhelming community of interest” standard discussed above. In effect, a critical aspect of the tradi- tional analysis was excised from the Board’s purview and shunted to the employer in a stringent and nearly insur- mountable burden shifting more suited to an adversarial proceeding than a representation-case analysis required by statute to be conducted by the Board. This curtailment of the Board’s role in performing a complete analysis of unit appropriateness undermined the mandate of Section 9(b), under which the Board must determine the appropriate bargaining unit “in each case.”12 Reinstating Specialty Healthcare, our colleagues per- petuate that error. As explained above, Specialty Healthcare is at the very least susceptible to the interpre- tation that it permits petitioned-for units to be found ap- propriate solely on the basis that the included employees share an internal community of interest and are “readily identifiable” as a group, without any consideration of whether their interests are “sufficiently distinct” from those of excluded employees unless a party contending that they are not raises the issue and proves it under the onerous “overwhelming community of interest” standard. Our colleagues “reinstate the Specialty Healthcare test” without any explicit modification.13 Their decision employer, gives the appearance of bias and undermines public trust. We repudiate it. 12 The majority asserts that Specialty Healthcare’s placement of the burden of proof on the objecting party finds support in precedent that imposes a similar burden of proof on a party that disputes the appropri- ateness of a petitioned-for unit that is presumptively appropriate. But that is precisely the point: Specialty Healthcare improperly treats unit that are not presumptively appropriate as though they are. 13 The majority tries to finesse this point by announcing what sounds for all the world like a three-step standard that incorporates sufficient distinctness as an essential element. This illusion is dispelled, however, by their explanation of how this standard is to be applied. Specifically, the majority holds as follows: Accordingly, the Board will once again approve a petitioned-for “sub- division” of employee classifications if the petitioned-for unit: (1) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 appears to suggest in some places that the Specialty Healthcare test considers whether the interests of included employees are “sufficiently distinct” as part of the inter- nal-community-of-interest inquiry, an inquiry courts have held must be undertaken before the overwhelming-com- munity-of-interest standard may properly be applied. But any such consideration is at best attenuated and indirect, since the internal-community-of-interest inquiry is pri- marily focused on the interests of the petitioned-for em- ployees. In any event, the majority opinion also repeat- edly emphasizes that Specialty Healthcare requires the Board to “determin[e] whether the unit is ‘sufficiently dis- tinct’ under the overwhelming community of interest standard” (emphasis added), and that “the ‘overwhelming community of interest’ standard properly creates a high bar for the party seeking to demonstrate that the unit is not ‘sufficiently distinct.’” This interpretation of Specialty Healthcare represents an unexplained and unjustified departure from the tradi- tional community-of-interest test for the reasons previ- ously stated. Indeed, the majority implicitly acknowl- edges that Specialty Healthcare is at least in tension with that precedent. Although they say that they reject any in- terpretation of Wheeling Island Gaming, supra, one of the shares an internal community of interest; (2) is readily identifiable as a group based on job classifications, departments, functions, work loca- tions, skills, or similar factors; and (3) is sufficiently distinct. Of course, the Board need not address each element in every case—if a particular element is not disputed, it need not be adjudicated. But, if a party con- tends that the petitioned-for unit is not sufficiently distinct—i.e., that the smallest appropriate unit contains additional employees—then the Board will apply its traditional community-of-interest factors to deter- mine whether there is an “overwhelming community of interest” be- tween the petitioned-for and excluded employees, such that there is no rational basis for the exclusion. If there are only minimal differences, from the perspective of collective-bargaining, between the petitioned- for employees and a particular classification, then an overwhelming community of interest exists, and that classification must be included in the unit. 14 The majority asserts that pre–Specialty Healthcare precedent pro- vided “no clarifying principle for what degree of difference renders a unit ‘sufficiently distinct.’” We believe that the decades of experience em- bodied in the traditional community-of-interest standard deserve more respect than this. Moreover, there is little merit in providing a “clarifying principle” for determining sufficient distinctness when the principle se- lected—i.e., that a petitioned-for unit readily identifiable as a group and possessing an internal community of interest is sufficiently distinct un- less an objecting party proves that the interests of excluded employees are “near[ly] indistinguishable” from the interests of those within it (and good luck with that)—derogates from the Board’s fulfillment of its duties under Sec. 9(b) of the Act and contravenes Sec. 9(c)(5), as we have shown. We note that prior to PCC Structurals, there was significant confusion among union and management practitioners, regional directors, and re- viewing courts about the interpretation and application of Specialty Healthcare. As described above, confusion existed regarding the proper application of the community-of-interest test—specifically, whether the leading cases setting forth the traditional standard, “that would create inconsistency with Specialty Healthcare or with today’s decision,” they admit that Wheeling Island Gaming may be so interpreted when they add that “even if such an interpretation were correct, then we would limit Wheeling Island Gaming to its facts.”14 The majority’s reinstatement of Specialty Healthcare is flawed in other respects as well. Throughout their deci- sion, our colleagues rely heavily on vague and subjective terms that are susceptible to a range of interpretations— e.g., “irrational” and “arbitrary”—in their attempt to rede- fine what it is for a unit to not be appropriate. (Variations on “rational” and “irrational” are used nearly 15 times in today’s decision, and “arbitrary” is used even more fre- quently, to state what an employer has to prove to show that a petitioned-for unit is inappropriate.) We do not be- lieve that Congress intended that every petitioned-for unit would be accepted unless it is “arbitrary” or “irrational.” To the contrary, Congress directed the Board to determine “in each case” “the unit appropriate for the purposes of collective bargaining.” PCC Structurals, 365 NLRB No. 160, slip op. at 3.15 In this respect, it is telling that in the years during which Specialty Healthcare was the govern- ing precedent, there was only one published decision in interests of the petitioned-for unit as distinct from those of excluded em- ployees were to be assessed in the first step of the analysis. See, e.g., DPI Secuprint, Inc., above; Macy’s Inc., above; DTG Operations, Inc., above. Such confusion required clarification by reviewing courts. See, e.g., Constellation Brands, above. By contrast, the majority decision fails to identify any cases demonstrating that the approach reflected in PCC Structurals was a source of significant confusion in its application. Despite the established confusion over the application of Specialty Healthcare, our colleagues heedlessly embrace that ambiguous ap- proach, which is seemingly strategically designed to ensure that, for all practical purposes, the extent of organizing will be controlling but, as a hedge against reversal, includes contrary assurances at the expense of clarity. 15 While our colleagues cite cases in which petitioned-for units were found arbitrary or inappropriate without the inclusion of additional em- ployees, those cases do not hold that arbitrariness is the threshold for defining what it means for a unit to be inappropriate. See, e.g., Casino Aztar, 349 NLRB 603, 607 (2007) (petitioned-for unit of beverage em- ployees inappropriate where “beverage employees have little community of interest with each other that is not also shared with most of the [ex- cluded] catering and restaurant employees”); Brand Precision Services, 313 NLRB 657 (1994) (petitioned-for unit of operators inappropriate where excluded laborers and leadmen, with whom they had constant con- tact, shared the same training, skills, and functions); Champion Machine and Forging Co., 51 NLRB 705, 707–708 (1943) (proposed unit was “clearly arbitrary” where it did not track craft or department lines and arbitrarily excluded employees performing similar work while including employees performing the same function as others who were excluded). Notably, it is at the very least an open question whether those units would have been found inappropriate under Specialty Healthcare or today’s de- cision, inasmuch as they were decided without imposing any burden of proof on the party opposing the unit and did not apply the “overwhelming community of interest” standard. AMERICAN STEEL CONSTRUCTION, INC. 21 which the Board found that an employer met its burden under Specialty Healthcare. See Odwalla, Inc., 357 NLRB 1608 (2011).16 C. The PCC/Boeing Framework Provides a Clear Standard for Unit Determinations. Contrary to our colleagues, the PCC Structurals/Boeing framework provides a clear standard for determining whether a petitioned-for unit is inappropriate because it excludes particular employees. Specifically, the PCC/Boeing framework requires the Board to analyze the distinct and similar interests of included and excluded em- ployees and determine “whether the employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities.” Boeing, 368 NLRB No. 67, slip op. at 4 (quoting Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d at 794 (emphasis in Constellation Brands)). Contrary to the majority, this standard does not contemplate a numerical tally of shared versus distinct community-of-interest factors, a point the Board made clear in Boeing. Id. Rather, it requires the Board to determine whether “the excluded employees have distinct interests in the context of collective bargain- ing.” Id. (internal quotation omitted; emphasis added). This qualitative standard follows directly from Section 9(b) of the Act, which requires the Board to determine “the unit appropriate for the purposes of collective bargaining” (emphasis added). The Act requires the Board to determine an appropriate unit for the purpose of collective bargaining—not, as our colleagues appear to believe, for the purpose of making it easier for unions to win elections. And the purpose of col- lective bargaining is inseparable from the primary goal of the Act itself, which is to “achiev[e] industrial peace by promoting stable collective-bargaining relationships.” Auciello Iron Works, Inc. v. NLRB, 517 U.S. at 790 (em- phasis added). Correspondingly, one of the Board’s pri- mary responsibilities under the Act is to foster labor-rela- tions stability. Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363 (1949) (“To achieve stability of labor relations was the primary objective of Congress in enact- ing the National Labor Relations Act.”). Moreover, col- lective bargaining was intended by Congress to be a pro- cess that could conceivably produce agreements. H.J. Heinz Co. v. NLRB, 311 U.S. 514, 523 (1941) (recogniz- ing that the object of collective bargaining under the Act is “an agreement between employer and employees as to wages, hours and working conditions evidenced by a 16 The majority points to two other cases in which it says that pro- posed units were found inappropriate under Specialty Healthcare: A.S.V., Inc., 360 NLRB 1252 (2014), and K&N Engineering, Inc., 365 NLRB No. 141 (2017). But in A.S.V., no party requested review of the Regional Director’s finding that the petitioned-for unit was signed contract”); Altura Communications Solutions, LLC, 369 NLRB No. 85, slip op. at 4 (2020) (same), enfd. 848 Fed. Appx. 344 (9th Cir. 2021). Accordingly, the PCC/Boeing framework requires the Board to consider whether the differences or similarities between petitioned- for and excluded employees will foster or undermine “ef- ficient and stable collective bargaining.” Kalamazoo Pa- per Box, 136 NLRB at 137. And whether efficient and stable collective bargaining will be fostered depends to a significant extent on “the circumstances within which col- lective bargaining is to take place,” which are largely de- fined by the composition of the unit. Id. Although it did not involve the PCC Structurals/Boeing framework, the Board’s recent decision in Starbucks, 371 NLRB No. 71 (2022), aptly illustrates how this inquiry works. In Starbucks, the Board considered whether the nature and frequency of interchange between employees in a petitioned-for unit and excluded employees working at other stores negated the presumptive appropriateness of a single store unit. The Board there stated that “the key question [was] the nature and degree of interchange and its significance in the context of collective bargaining.” Id., slip op. at 1 (emphasis added). The limited evidence of interchange in that case demonstrated that the peti- tioned-for employees did not have “frequent contact” with other employees and that they could “operate with relative independence.” Id. Mandating the inclusion of employ- ees with whom the petitioned-for employees had little contact would have impeded employees’ ability to self-or- ganize. And a separate unit was appropriate for the pur- poses of collective bargaining because it could operate with “relative independence.” Id. As such, the unit cor- responded to “the factual situation with which the parties must deal” at the negotiating table. Kalamazoo Paper Box, 136 NLRB at 136. D. The PCC/Boeing Framework Effectuates the Policies of the Act, While Specialty Healthcare Undermines Them. As we have explained, PCC/Boeing effectuates the stat- utory policy of fostering labor-relations stability. The Specialty Healthcare standard the majority reinstates to- day, in contrast, focuses almost exclusively on facilitating organizing while giving little, if any, weight to whether the unit thus organized will facilitate efficient and stable collective bargaining. As a result, extent of organization is prioritized, contrary to the policy if not the letter of Sec- tion 9(c)(5), and “efficient and stable collective bargaining inappropriate, so that issue was not before the Board for decision. 360 NLRB at 1252 fn. 1. And in K&N Engineering, the proposed unit was found inappropriate because it lacked an internal community of interest, not on overwhelming-community-of-interest grounds. 365 NLRB No. 141, slip op. at 3–4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 is undermined rather than fostered.” Kalamazoo Paper Box, 136 NLRB at 137. Contrary to the majority, the PCC/Boeing framework does not improperly diminish employees’ Section 7 right to self-organize. As explained above, it protects the Sec- tion 7 rights of included employees by requiring, in each case, that the unit have an internal community of interest. Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Di- vision, 404 U.S. at 172–173. Moreover, PCC/Boeing ex- plicitly recognizes that a proposed unit need only be an appropriate unit and need not be the most appropriate unit. PCC Structurals, 365 NLRB No. 160, slip op. at 12; Boe- ing, 368 NLRB No. 67, slip op. at 3. Unlike the Specialty Healthcare standard, the majority reinstates today, however, PCC/Boeing accords appropri- ate weight to the Section 7 rights of employees who have been excluded from the petitioned-for unit, correctly rec- ognizing that the two core principles at the heart of Section 9(a)—exclusive representation and majority rule—require bargaining-unit determinations that protect the Section 7 rights of all employees. PCC Structurals, 365 NLRB No. 160, slip op. at 8.17 Remarkably, our colleagues take the position that employees who are not included in a peti- tioned-for unit have no Section 7 interests that could be implicated by a Board determination that the unit is appro- priate. We disagree. Employees improperly excluded from a unit under the majority’s scheme may be suffi- ciently aligned with their unit coworkers and have suffi- ciently similar interests that their working conditions will be collaterally controlled by a collective-bargaining agree- ment from which they derive no benefit. Such an agree- ment may impact supervision shared with unionized coworkers, the ability to perform tasks flexibly and shift among tasks, opportunities to perform work that may be newly deemed unit work, and advancement if some of the work excluded employees previously performed is limited or denied them on that basis. The impact of contract terms negotiated for coworkers whose interests align closely (but not overwhelmingly) with those of excluded employ- ees may affect excluded employees’ seniority and conse- quently their vulnerability to layoffs, the cost of benefits for smaller groups of similarly positioned employees who cannot participate in a union plan, and myriad other effects on excluded employees who are closely aligned with the 17 Contrary to the majority, nothing in PCC Structurals, Boeing, or our opinion in this case remotely supports the claim that we seek to “maximize the participation of employees whose interests might be af- fected by the results of the election.” Rather, we believe that the interests of excluded employees should be given “appropriate weight.” Our col- leagues, for their part, deny that those employees have any cognizable interest, and therefore give those interests no weight at all. unit employees but fail to meet the “overwhelming com- munity of interest” test. All of these potential impacts re- sulting from an inappropriately approved bargaining unit implicate the excluded workers’ Section 7 rights to engage in or refrain from union activity—rights the Specialty Healthcare framework the majority reinstates today all but disregards. Also, unlike Specialty Healthcare, PCC/Boeing accords appropriate weight to the policy of fostering efficient and stable collective bargaining, which the Board emphasized in Kalamazoo Paper Box, 162 NLRB at 137. The majority views this as a novel argument in favor of PCC/Boeing despite the fact that Kalamazoo Paper Box was decided in 1962 and was cited and quoted at length in PCC Structur- als itself. 365 NLRB No. 160, slip op. at 3 fn. 8. This quibble aside, the majority agrees that fostering efficient and stable collective bargaining is an important statutory policy and that the Board’s unit determinations must take it into account. In light of the importance of this statutory goal, however, we disagree with our colleagues’ view that the Board should mandate the inclusion in a petitioned-for unit of additional employees only if “the differences be- tween the petitioned-for and excluded employees are so minimal that it would be truly irrational to engage in the process of collective bargaining without them.” In the end, the animating principle of the majority’s po- sition is clear. For them, the primary goal of a unit deter- mination is to facilitate employees’ ability to organize in the unit selected by the petitioning union. Indeed, our col- leagues question why the Board should ever “add employ- ees to units that otherwise possess a rational basis and the requisite mutuality of interests to bargain collectively.” After all, the majority observes, excluded employees can always petition for inclusion later through a self-determi- nation election. See Warner Lambert Co., 298 NLRB 993, 995 (1990) (incumbent union may add unrepresented em- ployees to its existing unit if the employees sought to be included share a community of interest with unit employ- ees and “constitute an identifiable, distinct segment so as to constitute an appropriate voting group”). Unions may well be more successful if they petition for segments of a workforce as they are organized, but this system of unit determinations effectively makes the extent of organizing the controlling factor, contrary to Section 9(c)(5) of the Act.18 In our view, the policies of the Act are better served 18 The majority fails to ground its standard in a meaningful discussion of the concerns that animated Congress in amending Sec. 9(b) and enact- ing Sec. 9(c)(5)—specifically, in requiring that the Board shall determine the appropriate unit in “each case” and ensure that the extent of organiz- ing shall not be controlling. To be sure, the majority repeatedly refers to the Board’s undisputed statutory duty to ensure employees the fullest freedom to exercise their rights under the Act and to organize in unions of their choosing. It is equally clear, however, that Congress placed AMERICAN STEEL CONSTRUCTION, INC. 23 by endeavoring to reach the correct unit determination the first time.19 We believe that our approach best effectuates the neu- tral role that Congress envisioned that the Board would play in making unit determinations. Accordingly, we agree with the Fourth Circuit that the significance of neutral rationales for inclusion or ex- clusion of particular employees in collective bargaining units cannot be overstated. Otherwise, reviewing courts will have no means of enforcing § 9(c)(5)’s prohibition; the Board can selectively rely on differences when the union desires exclusion of employees—and on similari- ties when the union desires inclusion. See Joan Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Pol- icymaking and the Failure of Judicial Review, 75 B. U. L. Rev. 387 (1995). The deference owed the Board as the primary guardian of the bargaining process is well established. It will not extend, however, to the point where the boundaries of the Act are plainly breached. NLRB v. Lundy Packing, 68 F.3d at 1583. The majority’s decision today simply cannot be reconciled with these prin- ciples. CONCLUSION PCC Structurals and The Boeing Company facilitate the Board’s accomplishment of its statutory duty to consider in each case the interests of petitioned-for and excluded employees and embody the traditional community-of-in- terest standard the Board has applied for decades. By overruling PCC Structurals and Boeing and returning to Specialty Healthcare, the majority guts that standard, un- dermines labor-relations stability, and shackles the Board in fulfilling its duties under Section 9(b) of the Act. Be- cause our colleagues advance no valid justification for tak- ing this step, we respectfully dissent. Dated, Washington, D.C. December 14, 2022 ______________________________________ Marvin E. Kaplan, Member ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD limitations on such aspirational words, indicating that employees’ free- dom to select their desired bargaining units is not controlling and that their choice must be rejected when they seek to create inappropriate bar- gaining units. Congress created this limitation in order to prevent inap- propriate units from derailing the collective-bargaining process and to avoid disruptions resulting from, for example, gerrymandering, undue proliferation of units, and circumstances whereby an inappropriate unit creates an unworkable situation in the workplace as a whole. Our col- leagues’ failure to recognize and address these specific concerns under- mines the legitimacy of their decision today. 19 Our colleagues disparage the PCC/Boeing standard as a “Goldi- locks”-style insistence on unit determinations that are “just right.” To the extent that our colleagues mean by this that our analysis requires that a proposed unit be the “most optimal” configuration, we have explicitly stated in this opinion that it does not, a point also emphasized in PCC Structurals and Boeing themselves. For all their criticisms of PCC Struc- turals, our colleagues cannot with any accuracy identify any case apply- ing that decision that illustrates their claim. What we do contend is that Congress actually meant something when it enacted Section 9(c)(5), that excluded employees also have statutorily protected interests that may be trampled on by the approval of inappropriate bargaining units, and that fostering stable collective bargaining requires neutral and balanced as- sessments of petitioned-for units in the context of the workplace as a whole. We make no apology for insisting that unit determinations should properly reflect these principles.