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Nov. 7 --An Alabama nursing home operator no longer is contesting a National Labor Relations Board ruling that allowed a union to win certification as the bargaining agent of the home's certified nursing assistants, but the impact of that decision--the board's controversial 2011 ruling in Specialty Healthcare--remains in doubt, a panel of lawyers told participants at the annual conference of the American Bar Association's Section of Labor and Employment Law in New Orleans Nov. 7.
Andrea J. Wilkes, the NLRB's deputy regional attorney in New Orleans and moderator of the conference session, said the Mobile, Ala., long-term care facility has been sold, and negotiations are under way for a collective bargaining agreement covering the certified nursing assistants. The contract talks with the United Steelworkers follow five years of litigation over the union's filing a petition to represent approximately 53 CNAs. The employer argued unsuccessfully through lengthy board proceedings and appellate litigation that only a larger voting unit would be legally appropriate.
William H. Haller, associate general counsel of the International Association of Machinists, told the audience that he doesn't think the ruling in Specialty Healthcare & Rehabilitation Center, 357 N.L.R.B. No. 83, 191 LRRM 1137 (2011) (169 DLR AA-1, 8/31/11), “really changes anything.” But Tanja L. Thompson of Littler Mendelson in Memphis, Tenn., said the board ruling was “definitely a new standard” for determining appropriate units that might have important practical effects for many employers.
According to the NLRB decision, United Steelworkers District 9 filed a petition seeking to represent a unit of full-time and regular part-time CNAs at the Mobile, Ala., facility. An NLRB regional director found that the requested unit was appropriate and directed an election.
Arguing that the only appropriate unit for voting would need to include 33 additional nonprofessional service and maintenance employees, Specialty Healthcare requested board review. The NLRB granted review, and decided to invite the filing of amicus briefs in the case (357 N.L.R.B. No. 56, 189 LRRM 1449 (2010); 245 DLR AA-1, 12/22/10).
Business groups, unions, and several Republican senators filed arguments in response to the board's invitation (48 DLR C-1, 3/11/11). In August 2011, the board issued a 3-1 decision finding the CNA unit was appropriate despite the exclusion of other employees from the voting group.
The NLRB overruled Park Manor Care Center, 305 N.L.R.B. 872, 139 LRRM 1049 (1991), a decision holding that in nonacute health care facilities the NLRB should take a pragmatic or empirical approach to unit determinations that could include consideration of recurring factual patterns as well as traditional “community of interest factors.”
The board majority in Specialty Healthcare, consisting of then-Chairman Wilma B. Liebman and then-Members Craig Becker and Mark Gaston Pearce, said the board would return to applying a “traditional community-of-interest approach” in nursing home cases.
The board also found that in any case in which a party contends that a petitioned-for unit containing a “readily identifiable” group of workers is underinclusive and therefore inappropriate, “the burden is on the party contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.”
The Steelworkers won an election among the CNAs. The Alabama nursing home refused to bargain with the union and then petitioned for review in the U.S. Court of Appeals for the Sixth Circuit when the NLRB relied on the election certification to make unfair labor practice findings against the employer.
The Sixth Circuit enforced the NLRB order, ruling in Kindred Nursing Centers East LLC v. NLRB, 727 F.3d 552, 196 LRRM 2545 (6th Cir. 2013), that the NLRB acted within its “wide discretion” under the NLRA in applying a version of the board's traditional community-of-interest test to the Alabama dispute.
Stating that “it is within the Board's purview to choose to follow one of its precedents or reject another,” the Sixth Circuit wrote, “If the Board believes it can best fulfill its statutory duty by adopting a test from one of its precedents over another, then the Board does not abuse its discretion.”
The NLRB adequately explained its decision to overrule Park Manor and to clarify its community-of-interest standard, the appeals court said.
Haller said the board's discussion of an “overwhelming” community of interest only “elucidates” that where a union has petitioned for an election in a unit that is appropriate under the National Labor Relations Act, “surely the employer should have the burden to persuade a regional director that the unit is not appropriate.”
Haller said the Sixth Circuit rejected all of the arguments marshalled by management lawyers in opposition to the NLRB ruling. “I think it's a standard that's here to stay,” the IAM lawyer said.
The union lawyer acknowledged the argument that Specialty Healthcare would lead to fragmented “micro-units” that could lead to workplace disruptions and unstable bargaining relationships, but he said “it's too early to say” whether the ruling will actually have such an effect in the long term.
If labor unions appear to be filing representation petitions for small groups of employees, Haller said, it may simply reflect the difficulties they face in organizing “with or without Specialty Healthcare.” He said unions sometimes work on organizing small groups of workers when larger-scale campaigns appear to be out of reach.
Haller said predictions about proliferating organizing drives among tiny groups of employees may be exaggerated. “What kind of leverage can a union have in these little units?” Haller asked. He added that there may be no point in a union's filing a petition to represent a “micro-unit” in a larger workforce.
Thompson, who represents employers, took a different view of the NLRB ruling.
Stating that Specialty Healthcare took NLRB beyond a simple community-of-interest analysis in representation cases, she questioned why the board saw a need to reformulate representation case standards in the absence of any apparent “scramble” by stakeholders for new ground rules.
Thompson said the board clearly shifted to the employer a burden of showing that employees excluded from the voting unit requested by a union have an overwhelming community of interest with the employees covered by the union's petition. She called the board's description of the overwhelming community of interest “a little bit fuzzy.”
The management lawyer said since the board's announcement of Specialty Healthcare, there have been few decisions for employers based on challenges to the appropriateness of a union's requested voting unit. Only if the union seeks a “fractured” unit of employees will the board find that the requested unit is not an appropriate grouping under the NLRA, she said.
Thompson said “we're still waiting for the other shoe to drop” on the questions of whether Specialty Healthcare will lead to an excessive fragmentation of bargaining units and what effect the ruling may have in other industries, including retail stores, where employers emphasize their need for “seamless” work flows that may depend on the functional integration or interchange of employees performing different jobs.
Responding to Haller's argument that unions may have little to gain from organizing very small employee groups, Thompson warned that a union gaining the right to represent even a small group wins important legal rights, including a right of access to the employer's premises, the right to demand information relevant to bargaining, the opportunity to propose terms and conditions of employment for a small unit within a larger staff, and the right to call a strike.
Clearly, Thompson observed, winning such legal rights can have an important impact on the union that represents a small group and it makes an important change for the affected employer.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
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