NLRB Decision on Health Care Voting Units Adds ‘Clear Test' for Cases in All Industries

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In a much-awaited ruling that management attorneys warn could make it easier for unions to organize small sections of company workforces, the National Labor Relations Board Aug. 26 decided 3-1 to overrule a 20-year-old precedent on bargaining units in nonacute health care facilities. The board approved a regional director's decision to allow certified nursing assistants at an Alabama nursing home to vote on union representation without including other nonprofessional employees in the voting group (Specialty Healthcare & Rehab. Ctr., 357 N.L.R.B. No. 83, 8/26/11 [released 8/30/11]).

Calling the 1991 decision in Park Manor Care Center an “obsolete” ruling that failed to provide clear guidance to employers and unions, Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce said the board will return to applying “traditional community-of-interest considerations” in deciding whether proposed units in nonacute health care facilities are appropriate under the National Labor Relations Act.

The decision allows 53 CNAs at Specialty Healthcare and Rehabilitation Center in Mobile, Ala., to vote on representation by a United Steelworkers local union. But the board majority said in any case where a union petitions for voting by a group of employees sharing a community of interest, an employer arguing for a larger unit will have to show that “employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.”

Member Brian E. Hayes, the only Republican on the board, wrote a blistering dissent, arguing that the majority overruled Park Manor “for the purely ideological purpose of reversing the decades-old decline in union density in the private American work force.” Hayes warned that the majority has adopted a bargaining unit test that “obviously encourages unions to engage in incremental organizing in the smallest units possible.”

‘Overwhelming Community of Interest' Requirement

After overruling Park Manor and finding that the Steelworkers had requested an election in an appropriate unit, Liebman, Becker, and Pearce said “we come to the question of what showing is required to demonstrate that a proposed unit consisting of employees readily identifiable as a group who share a community of interest is nevertheless not an appropriate unit because the smallest appropriate unit contains additional employees.”

Noting that the act requires only that an election be conducted in an appropriate unit, the majority said once NLRB determines that employees in a proposed unit share a community of interest, an employer's demonstration that the employees also share a community of interest with workers outside the proposed unit would not render the petitioned-for unit inappropriate.

Citing a decision of the U.S. Court of Appeals for the District of Columbia Circuit in Blue Man Vegas LLC v. NLRB(529 F.3d 417, 184 LRRM 2321 (D.C. Cir. 2008)) as well as several board decisions, the majority said “[w]hen the proposed unit describes employees readily identifiable as a group and when consideration of the traditional factors demonstrates that the employees share a community of interest, both the Board and courts of appeals have necessarily required a heightened showing to demonstrate that the proposed unit is nevertheless inappropriate because it does not include additional employees.”

The board members acknowledged that board decisions are fact-specific rulings dealing with “diverse workplaces” and that board decisions have “sometimes used different words to describe this standard.” But Liebman, Becker, and Pearce wrote:

“We therefore take this opportunity to make clear that, when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.”

The board members said applying the standard still would depend on the facts of a particular case. However, they added, “[m]aking clear what the party objecting to a petitioned-for unit must contend and demonstrate, when the petitioned-for unit contains employees readily identified as a group who share a community of interest, will also produce more predictable and consistent results.”

Finding that Specialty Healthcare did not show that its nonprofessional employees shared an “overwhelming community of interest” with the CNAs sought to be represented by the Steelworkers, and observing that there was no evidence that allowing CNA representation would lead to an undue proliferation of separate employee units, the board found that the unit sought was appropriate under the NLRA and remanded the case to the regional director for further action on the union's petition.

Finally, the majority repeated that it was providing a “clear test—using a formulation drawn from Board precedent and endorsed by the District of Columbia Circuit—for those cases in which an employer contends that a proposed bargaining unit is inappropriate because it excludes certain employees.” In such cases, the board said, “the employer must show that the excluded employees share an ‘overwhelming community of interest' with the petitioned-for employees.”

Kline, Management Lawyers See Major Change

Apparently referring to Specialty Healthcare and the board's rulings the same day in Lamons Gasket Co. (357 N.L.R.B. No. 72, 8/26/11 [released 8/30/11]) and UGL-UNICCO Service Co. (357 N.L.R.B. No. 76, 8/26/11 [released 8/30/11]), House Education and the Workforce Committee Chairman John Kline (R-Minn.) said in an Aug. 30 statement: “In one fell blow, the NLRB has overruled years of labor policy in an underhanded scheme designed to please its powerful Big Labor allies. The decisions handed down will turn workers against coworkers and undermine an employees' ability to challenge unionization.”

Leigh Tyson, a Constangy, Brooks & Smith partner in Atlanta representing employers, told BNA the board has been “really shifting the way labor law works.” She said Specialty Healthcare creates a “very different landscape for employers.”

Tyson said the approval of a unit limited to CNAs strongly suggests that there will be many cases in which the board will endorse other bargaining units limited to a single job category. Employers will face a real risk that unions will target very small, cohesive groups of employees for organizing, she said. Specialty Healthcare may make such an organizing effort more practical under board law, she noted, observing that a union that is successful organizing one small group of workers may then try to make inroads with other workers.

Tyson noted that if the board's rulemaking proposal for accelerated handling of election petitions is finally approved, employers may be facing organizing drives aimed at very small employee groups, with very little time to prepare a response.

John Raudabaugh of Nixon Peabody in Washington, D.C., represents employers and served as a board member from 1990 to 1993. He told BNA that the board ruling is a “critical challenge” for employers that will make it “difficult if not impossible to challenge a small unit going forward.”

Warning that “a job description could define a unit” after Specialty Healthcare, Raudabaugh said if an employer is concerned about being “picked apart” by multiple union efforts aimed at winning the right to represent small employee groups, the organization's management should immediately begin to analyze its staffing and operations to identify what jobs or groups might be seen as sharing a community of interest and to determine how employer practices such as transfers and employee interchange might affect unit determinations by NLRB.

Union Side Sees Fair, Sensible Decision

Kimberly Freeman Brown, executive director of American Rights at Work, an advocacy organization for employee rights, complimented the decision in a statement Aug. 30.

“In today's race to the bottom economy, it's more important than ever that employees can join together to negotiate for better pay, decent benefits, and improved working conditions,” she wrote. “Specialty Healthcare recommits the Board to following a fair, commonsense process for determining the make-up of bargaining units for nursing home and long-term care workers—helping ensure that when these workers want to form a union, they can do so without undue interference from exploitative employers.”

Eileen Goldsmith, a partner at Altshuler Berzon in San Francisco who represents unions and nursing home workers, told BNA the ruling represented a “very sensible” choice by the board to overrule Park Manor, a decision she said was “kind of incomprehensible” to employers and unions.

Goldsmith said the decision to allow a unit of CNAs at the Alabama nursing home was sound, and she thought it made a “great deal of sense” for the board to provide guidance on unit determinations outside the nursing home industry. The union lawyer said requiring employers to show an overwhelming community of interest between employees sought by a union and others may eliminate some frivolous litigation now undertaken by employers seeking delay.

As a practical matter, Goldsmith said she does not expect that the ruling will change union decisions on commencing organizing drives. She observed that in many cases where a union encounters an employer arguing that additional employees belong in an NLRB voting unit, union representatives will agree to enlargement of the unit in order to secure an election without undue delay.

By Lawrence E. Dubé

Text of the decision can be accessed at .