NLRB Reinstates Specialty Healthcare Making it Easier to Organize Smaller Units

February 6, 2023 by Angela Yahaira Breining

On December 14, 2022, the NLRB issued an important decision reinstating an Obama-era standard for determining the appropriateness of smaller bargaining units. In American Steel Construction, the Board overturned Trump-era decisions that set a high threshold to approve the appropriateness of smaller bargaining units. The decision reinstates a more lenient framework for the approval of units that are less than company-wide, thus making it easier to organize smaller units of workers.

Under the Trump-era framework, in place since 2017, a petitioned-for smaller unit was appropriate only if the employees in the unit were sufficiently distinct from the excluded employees. A unit was sufficiently distinct only if the excluded employees had a meaningfully distinct interest in the context of collective bargaining that outweighed the similarities with the petitioned-for unit employees.

With the reinstatement of the Obama-era, Specialty Healthcare standard, the Board will once again approve a smaller bargaining unit if the petitioned-for unit: (1) shares an internal community of interest; (2) is readily identifiably as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct. If the employer argues that the petitioned for unit must include additional employees, then the Board will apply its traditional community of interest factors to determine whether there is an “overwhelming community of interest” between the petitioned-for and excluded employees. Only if there is an overwhelming community of interest, meaning there are very few differences between the employees in the petitioned-for unit and the excluded employees, will the excluded employees be added to the unit. Otherwise, the smaller petitioned-for unit will be deemed appropriate.

See our 2014 blog on application of Specialty Healthcare to a unit limited to employees in one department: https://www.beesontayer.com/2014/08/nlrb-oks-departmental-bargaining-unit-whats-the-big-deal/

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