NLRB Ruling Eases Unions’ Ability to Get Representation Elections

February 8, 2023
Hall Benefits Law, LLC

The National Labor Relations Board (NLRB) has issued a new ruling that modifies the language used to determine whether a group is an appropriate collective bargaining unit. The change will make it easier for unions to get representation elections, especially regarding smaller bargaining units. 

In the American Steel Construction case, which the NLRB issued on December 14, 2022, the agency returns to the so-called Specialty Healthcare standard, which originated during the Obama administration. Employees in a bargaining unit must still be “readily identifiable as a group” and share a “community of interest.” 

Employers often challenge a petitioned-for bargaining unit, arguing that a larger unit is more appropriate. Employers may take this position believing that the union will be less likely to win the election with a larger group of employees voting. Under the Specialty Healthcare standard, if an employer argues that the unit must include additional employees, the burden of proof is on the employer to show that the excluded employers share an overwhelming “community of interest” with the workers in the bargaining unit. As a result, smaller bargaining units may be more likely to be approved, which could result in greater rates of labor organizing.

Some elements that employers might use to prove that employees share an overwhelming community of interest and thus be included in a smaller petitioned-for bargaining unit include the following: 

  • The employees are functionally integrated with the employer’s other employees;
  • The employees have frequent contact with the other employees; 
  • The employees all have the same terms and conditions of employment; and
  • The employees all share the same supervisors. 

Some have criticized the NLRB’s return to this union-friendly standard, claiming that the resulting “micro-units” will allow unions to work through them to organize larger groups of employees. The small bargaining units may create instability in collective bargaining arrangements. 

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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