Employers take note—a recent rule change implemented by the NLRB is designed to make it easier for unions to organize smaller bargaining units. Specifically, on December 14, 2022, the National Labor Relations Board ("NLRB") issued a decision that modifies its standard for bargaining unit determination cases to allow a union to organize in as small a unit as it has support ("micro-units"). Under the Obama administration, the NLRB established a standard requiring a high burden of proof for an employer to demonstrate that a petitioned-for micro-unit is inappropriate because other employees should be included in that unit. However, under the Trump administration, the NLRB adopted a different standard which removed the burden from the employer challenging the unit and established a balancing test. This standard made it easier for employers to oppose the recognition of micro-units.
The NLRB's return to the standard established under the Obama administration is an example of how the Biden administration is looking for ways to make it easier for unions to successfully organize in workplaces.
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