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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On December 14 the National Labor Relations Board (NLRB or Board) issued another precedent-shifting decision, this time easing the standard for unions to organize “micro units” made up of subsets of the workforce. The 3-2 decision issued by the Board’s democratic majority in American Steel Construction, Inc. returned to an Obama-era standard and overturned the historical standard that was readopted under the Trump Board in 2017. Under the new decision, unions can exclude employees within the workforce from the voting unit unless the employer can show the excluded employees share an “overwhelming community of interest” with the employees included in the voting unit.

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Section 9(b) of the National Labor Relations Act allows a party petitioning for unit recognition to seek representation of a subdivision of employees. Historically, the NLRB has considered multiple factors to determine the appropriateness of these micro units, including:

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However, in 2011 the Obama Board changed the standard for showing the union-selected unit is improper by requiring employers to show employees in the voting unit shared an overwhelming community of interest with the employees the union left out.

In 2017 the Trump Board returned to the traditional test but created a new three-step process for analyzing the unit’s appropriateness. The new standard required the petitioning unit to be:

Now, the Biden Board has returned to the Obama-era standard that, as a practical matter, was almost impossible for employers to meet. Under the new standard, unions will have an easier time choosing voting units that are more likely to vote in favor of the union, while employers will be faced with the near impossible task of showing an overwhelming community of interest with other employees to prevent the cherry-picked unit.

Notably, this decision will apply to all pending cases, requiring employers to shift their strategic efforts.

<a>This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.</a>

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/12/Labor-Employment-NLRB-Paves-the-Way-for-Micro-Units.pdf

NLRB Paves the Way for Micro Units

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