As expected, Senator Johnny Isakson (R-GA) has reintroduced a bill targeting the National Labor Relations Board's decision in Specialty Healthcare, 357 NLRB No. 83 (2011). The Representation Fairness Restoration Act (S.1217) would reinstate the pre-2011 standard for determining which employees belong in a particular bargaining unit. Rep. Francis Rooney (R-FL) introduced a companion bill (H.R. 2629) in the House of Representatives.

In the contentious Specialty Healthcare decision, the Board adopted a new standard for assessing appropriate bargaining units. Under the new standard, so long as a union's petitioned-for unit consists of a “clearly identifiable” group of employees, the Board will presume the unit is appropriate. If an employer argues that the unit should include additional employees, the employer must demonstrate that employees in a proposed larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. This standard allows for the certification of smaller or "micro" bargaining units within a single workplace, which can prove administratively difficult for employers.

In a press release announcing the bill's introduction, Sen. Isakson said, “Common sense would tell you, and now experience has shown, that ‘micro-unions’ are a mistake, and I’m going to continue working to ensure that we have fair and equitable application of labor laws in the United States of America.”

Although this bill has been introduced each year since Specialty Healthcare was issued, it has failed to sufficiently advance. The difference this year, of course, is that the composition of Congress and the presidency has changed. Time will tell whether this will improve the legislation's chances of enactment this session.

We will continue to monitor this bill and report on any significant developments.