Appropriate Units for Election and Bargaining additional

materials (this is from an update I made to a different labor casebook, so

ignore the references to page numbers. However, it includes some important
points.
Page 436
The wide deference shown to the Boards unit determinations
is especially apparent when the Board excludes from a unit a
group of employees that perform related work even on the same
production process but are distinct in certain respects from the
employees in the petitioned-for unit. For example, in Blue Man
Vegas, LLC v. NLRB, 509 F.3d 417 (D.C. Cir., 2008), the court
refused to set aside the Boards determination that a petitionedfor unit consisting of the stage hands in 6 of the 7 departments
that support a theatrical show called Blue Man Group. The stage
crew consisted of employees in 7 departments audio, carpentry,
electrics, properties (props), video and musical instrument
technicians (MITS) but the Board approved a unit excluding only
the MITS. Because there were certain differences between the
terms and conditions under which the MITS and the other stage
hands worked, the court found substantial evidence supported the
Boards approval of the petitioned-for unit, even though the
court conceded that a unit of all stage hands, including the
MITS, also probably would have been appropriate. Notable is the
great care taken by the court to explain the rationality (as
opposed to the political nature) of the unit determination
process.
Page 445 Addition to Note
In Specialty Healthcare, 357 N.L.R.B. No. 83 (2011), the Board
(overruled Park Manor Care Center, calling it obsolete and barren
of clear guidance, and) adopted a new standard for determining
the appropriate unit in nonacute care health facilities, taking
care not to limit the new analytical framework to such
facilities. The union petitioned for a unit of 53 certified
nursing assistants only, and the employer claimed that the unit
should include as well the 33 other non-professional service and
maintenance employees, such as resident activity assistants, the
social services assistant, a scheduler, the maintenance
assistant, and central supply clerk, working at its nursing home
and rehabilitation center. According to the new approach, the
Board will find the petitioned-for unit appropriate if the
employees therein are in the same job classification, have

distinct skills and training, have distinct job functions and

perform distinct work, work under the same supervision and in the
same work areas, and thereby share a community of interest.
Because the Board need only find an appropriate unit, it makes no
difference that the employees in the petitioned-for unit share a
community of interest with a larger grouping of employees, and it
is not alone a relevant consideration that the petitioned for
unit is small. Rather, the employer must demonstrate that
employees in the more encompassing unit share an overwhelming
community of interest . . . . Although Specialty Health Care
involved a non-acute care health facility and nursing assistants,
the Board has applied the approach it adopted in that case
outside the health care setting. See, e.g., Northrup Grumman
Shipbuilding, Inc., 357 N.L,R,B. No. 163 (2011) (group of
technical employees constituted an appropriate unit because they
were readily identifiable as a group and shared a community of
interest under the usual criteria, and employer failed to
demonstrate that other technical employees it wanted in the unit
shared an overwhelming community of interest with the technical
employees in the petitioned-for unit.)
Does the Boards approach mean that so long as a union
petitions for employees in a particular job classification whose
jobs are in some sense distinct from the duties of other
employees and who work in the same areas and under the same
supervision, the unit is presumptively appropriate and the
rebuttal burden is very difficult to meet? Is Section 9(c)
irrelevant so long as the unit the union seeks is an appropriate
unit?