‘Micro-Unit’ Reversal Could Weaken Health Worker Unions’ Clout

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By Madison Alder

The era of “micro-units” could come to an end if the president’s picks for the National Labor Relations Board are approved. The impact on existing bargaining units, however, will take a little time.

“The nursing home industry has been buffeted with these small bargaining units,” Cliff Nelson, an attorney with Constangy, Brooks, Smith & Prophete, told Bloomberg BNA July 27. Nelson was an attorney for Kindred Nursing Centers East, formerly Specialty Healthcare, in its 2011 case before the NLRB.

Micro-units, or micro-unions, have been a point of contention since the NLRB’s 2011 ruling that a small group of certified nursing assistants (CNAs) within Specialty Healthcare could vote to unionize as its own separate bargaining unit. Now that President Donald Trump has two Republican nominees likely to be appointed to the five-member board, the NLRB could soon have a 3–2 conservative-leaning majority on the panel, and the Specialty Healthcare & Rehabilitation Center of Mobile ruling would likely be overturned.

Before Specialty Healthcare, nursing homes would typically have two or three wall-to-wall bargaining units within them, but following the decision the number of units has increased as employees have found they can be a certified unit in smaller numbers.

The NLRB’s ruling made it easier for unions to go into nursing homes and “pick a unit where they have the most strength,” Nelson said.

Those who support Specialty Healthcare, counter that the smaller employee units give a voice to workers with unique interests.

“To have a CNA unit on its own makes sense both for the CNAs and the employer,” Dan Kovalik, associate general counsel for the United Steelworkers Union, told Bloomberg BNA Aug. 1. Kovalik represented the Steelworkers Union—the union the CNAs elected to join—in Specialty Healthcare.

Part of the reason for having separate units for CNAs was because they “are paid a lot less than nurses and do a lot of the dirty work,” Kovalik said. The micro-units “have worked well” so far in bargaining for those unique interests, Kovalik said, and have experienced a lot of success in bargaining contracts and labor management.

But Kovalik cautioned that if there is a fight over the Specialty Healthcare decision under a new NLRB: “We’ll take that fight and hopefully win.”

The Future of Micro-Units

“Nothing will happen” to most micro-units immediately following a Specialty Healthcare reversal, but several things could work to disband the smaller bargaining units in the long run, according to Jeffrey Hirsch, a professor at the UNC School of Law.

“During the life of a contract, those units are protected,” Hirsch told Bloomberg BNA. “But what can happen then—and this is where it gets more interesting—is if the contract is being renegotiated, or you have a situation where this a non-existing contract or bargaining for an initial contract, the employers have some additional leverage.”

One approach employers might take if they want to challenge an election or a unit determination is to claim that the unit is not bargaining in good faith, Hirsch said. That kind of challenge is pulled from Section 8(a)(5) of the National Labor Relations Act, which states that an employer must make an effort to bargain with a potential or existing unit.

“The most immediate impact is going to be any new attempt to unionize,” Hirsch said. You “would expect to see some drop off in union attempt and success rates” if the decision were reversed, “but probably not a big difference.”

The NLRB has to wait for a case to come before it in order to reverse its previous decision, but Hirsch, Nelson and Barnes & Thornburg attorney David Pryzbylski all agreed that the micro-unit issue commonly comes before the board. That provides multiple opportunities for a newly constituted labor board to reconsider the micro-unit issue and reverse Specialty Healthcare.

“Unfortunately, once you fracture everything and break it up into units certified, board procedures make it very difficult to put Humpty Dumpty back together again,” Pryzbylski told Bloomberg BNA. “Employers who have had micro-units certified likely will be stuck with them for as long as the unions remain in place.”

Although there are procedures that would allow the board to clarify the scope of a micro-unit, Pryzbylski said it would be an arduous task to attempt to undo all micro-unit certifications.

No Micro-Unit Advantage

“The smaller units give the unions a much better chance at winning an election,” Nelson said. “But I don’t think that turns over to the bargaining table if the employer knows what they’re doing.”

Having more units in a nursing home might make it harder for the facility to function, Nelson said. He cited the various negotiations employers have to go through with the individual units and the potential that individual units could strike at different times.

Nelson also said that the health care marketplace and nursing home workers’ pay are inextricably linked because many living in nursing homes use Medicaid or Medicare to finance their care. That means the reasons for forming units in nursing homes are typically not linked to pay, he said.

“The biggest issue that gets unions organized is the issue of respect,” Nelson said.

How Smaller Unions Could Survive

“We hope that if Specialty Healthcare is reversed for change, the units we have will survive or grow,” Kovalik said.

Many employers might find it easier to add members to the unit, than try to get rid of them all together, he said. “I don’t think they would get out of bargaining with those folks.”

In fact, Kovalik said, Kindred Nursing Centers East “voluntarily recognized” the micro-unit before the Sixth Circuit Court of Appeals issued its ruling, which upheld the NLRB decision in Specialty Healthcare.

“Kindred came to us and said they were going to recognize us anyway, and we bargained a contact,” he said.

Kovailk said the the Sixth Circuit’s decision was made on “firm legal grounds” and it would be difficult to find fault in its judgment. He said because of that, there is a chance that a change in the way the NLRB deals with micro-unit certifications “would not be retroactive.”

Other Industries Affected, Too

A side effect of the Specialty Healthcare decision was its impact on other industries outside the health care sector, Pryzbylski said.

“The health care world has always had its own unique set of rules for bargaining units,” Pryzbylski said.

After its decision in Specialty Healthcare, the NLRB said the ruling did not apply to any industry outside health care facilities. Since then, however, the board has applied the same criteria to cases in many different industries, including auto sales, rental cars, and department stores, Pryzbylski said.

Strong Conservative Opposition

Philip Miscimarra, NLRB chairman and the sole conservative member of the current board, has been outspoken about his disagreement in certifying micro-units, and the two nominees put forward by Trump would likely agree with him, Pryzbylski said.

Miscimarra dissented in a May 10 decision in which the two Democratic members ruled in favor of micro-units. “I believe Specialty Healthcare was wrongly decided,” the chairman said.

“He gave every indication on May 10 of this year that if and when he has two members that share his point of view, Specialty Healthcare likely will be overruled,” Pryzbylski said.The president’s nominees, William Emanuel and Marvin Kaplan, were approved by a Senate committee July 19 and are awaiting a floor vote.

To contact the reporter on this story: Madison Alder in Washington at malder@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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