07/21/2026: Two Unit Appropriateness Cases
Applications of American Steel.
Norwich University - The Military College of Vermont, 03-RC-366072 (Unpublished Board Decision)
The Board granted the employer's request for review on the narrow question of whether the petitioned-for unit was appropriate under current precedent, inviting briefing on that issue while denying review in all other respects.
Applying the three-part test from American Steel Construction, Inc., the Board considers whether a petitioned-for group shares an internal community of interest, is readily identifiable, and is sufficiently distinct from excluded employees. Chairman Murphy and Member Mayer noted they did not participate in that decision and took no position on whether it was correctly decided, but agreed to apply it for institutional reasons.
The Board separately denied review of the Regional Director's decision overruling the employer's election objections, finding no substantial issue warranting review. The employer had argued that a Board agent's conduct during the election reflected bias. The Board clarified that such claims are evaluated not under the Polymers, Inc. standard but under the more particularized test from Athbro Precision Engineering Corp., which asks whether the agent's conduct tends to destroy confidence in the Board's election process or could reasonably be seen as impairing the integrity of election standards. Applying that standard, the Board found that a Board agent's inaccurate verbal characterization of the preelection hearing as involving "no issue," along with an email describing only one of the legal issues to be addressed at the hearing, did not amount to objectionable conduct. The Board cited Indeck Energy Solutions and S. Lichtenberg & Co. in support of this conclusion. The employer's motion for extraordinary relief was denied as moot.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the current test for determining whether a petitioned-for subdivision of employees constitutes an appropriate unit, focusing on community of interest, identifiability, and distinctness.
Athbro Precision Engineering Corp., 166 NLRB 966 (1967): Held that an election will be set aside for Board agent misconduct only when the conduct tends to destroy confidence in the Board's election process or could reasonably be seen as impairing election standards.
Polymers, Inc., 174 NLRB 282 (1969): Set out a general standard for evaluating objections to elections, later distinguished from the more particularized Athbro standard for Board agent bias claims.
Indeck Energy Solutions, 316 NLRB 300 (1995): Cited in support of finding that a Board agent's conduct did not rise to the level of objectionable interference with an election.
S. Lichtenberg & Co., 296 NLRB 1302 (1989): Found that a Board agent's public remarks about a pending complaint against the employer shortly before an election were not objectionable under the Athbro standard.
Auto-Chlor System of Washington, Inc., 19-RC-357182 (Unpublished Board Decision)
The Board denied the employer's request to review a regional director's decision directing an election in a unit that excluded certain production classifications from a mixed group of sales, service, and administrative employees.
The Board found that although the regional director had not properly applied American Steel Construction, Inc., the correct outcome was still reached. Under that standard, employees can be excluded from a petitioned-for unit unless they share an "overwhelming community of interest" with the unit employees. Here, the excluded production classifications, who mix and handle chemicals, were organizationally distinct from the directed unit and had more regular contact with each other than with unit employees. The Board disagreed with the regional director's finding that there was no interchange between the groups, noting that some interchange existed in the record, but concluded that because most of it was permanent rather than temporary, it deserved only limited weight. The Board also found that similarities in training and skills between the groups were modest, even though all employees receive on-the-job training and no specific licenses are required.
The Board acknowledged evidence of functional integration and overlapping wages and working conditions between the groups, but concluded that, taken together, the differences between the production classifications and the directed unit amounted to more than "only minimal differences" and provided a rational basis for the regional director's exclusion decision. The Board also declined to rely on the regional director's characterization of interchange as a "critical" factor, clarifying that Executive Resources Associates addressed a different question, rebuttal of a presumptively appropriate single-facility unit, and did not establish interchange as inherently more important than other community-of-interest factors.
Chairman Murphy and Member Mayer noted they had not participated in American Steel Construction and expressed no view on whether it was correctly decided, applying it here only for institutional consistency. Member Mayer dissented in part, arguing that review should have been granted to examine whether the relevant factors, including shared terms of employment, functional integration, interchange, departmental organization, skills and training, contact, and supervision, weighed against the unit as configured by the regional director.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established that classifications may be excluded from an otherwise appropriate petitioned-for unit only if they share an "overwhelming community of interest" with the included employees.
Executive Resources Associates, 301 NLRB 400 (1991): Addressed whether a party had rebutted the presumptive appropriateness of a petitioned-for single-facility unit, a distinct question from overwhelming community of interest analysis.