NLRB Makes It Easier For Unions To Represent Smaller Units Within Larger Workforce

Key Takeaways:

• The NLRB's decision shifts the burden to employers to show that a union's proposed bargaining unit is too narrow.
• Under the reinstated Obama-era standard, employers must show that workers outside of the proposed unit have an "overwhelming" common interest with workers inside the proposed unit to successfully challenge the proposed bargaining unit.
• The decision increases the odds that unions will be able organize and represent small bargaining units within an employer's larger workforce.

On December 14, 2022, in a return to Obama-era precedent, the National Labor Relations Board (NLRB) toughened the standard an employer must meet to prevent a union from organizing a small group of employees within a larger workforce. Under the NLRB's ruling in American Steel Construction Inc., 372 NLRB No. 23 (2022), employers must show workers outside of the proposed unit have an "overwhelming" common interest with workers inside the proposed unit in