Five years ago, the National Labor Relations Board (NLRB) issued its now infamous decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 940 (2011) that paved the way for a slew of “micro-units” being certified by the NLRB (despite the NLRB’s assurances back in 2011 that its holding in Specialty Healthcare would only apply to certain healthcare bargaining units). For those unfamiliar with micro-units, when filing an election petition with the NLRB, a union must identify a legally appropriate group of employees (i.e., the “bargaining unit”) it seeks to organize. Historically, all-inclusive “wall-to-wall units” (e.g., production and maintenance employee units) were favored by the NLRB. In contrast, “micro-units” are fractional, designed to decrease the size of the unit and make organizing easier; they were often disapproved of by the NLRB. Specialty Healthcare altered the NLRB’s legal standard regarding bargaining units and has made it easier for unions to seek micro-units.

On Oct. 31, the U.S. Chamber of Commerce published a study that revealed micro-units have indeed been on the rise since Specialty Healthcare was decided – confirming employers’ fears. A press release and the report itself criticizes the NLRB for misleading the public with respect to micro-units in light of the NLRB’s publicly issued statements at the time the case was decided indicating the Specialty Healthcare rule would only apply in limited circumstances.