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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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