In one of its most controversial decisions to date, the National
Labor Relations Board ("NLRB") has overturned 20 years of
precedent and will now permit unions to organize a minority share
of an employer's workforce. As a result of this decision,
organized labor will be able to establish footholds in businesses
where the majority of the employees may not desire to be
represented by a union.
On August 26, 2011 the NLRB released its decision in Specialty
Healthcare and Rehabilitation Center of Mobile, 357 NLRB No.
83 (2011). In Specialty Healthcare, the United
Steelworkers petitioned for a representational election in a
bargaining unit that was very distinct from the typical "wall
to wall" unit. For decades, the NLRB has concluded that where
employees share a "community of interest" that the
appropriate bargaining unit in a representational election should
include all of the employees of the employer who are similarly
situated. Typically this type of unit is called a "wall to
wall" bargaining unit and its common description includes all
"production and maintenance" workers employed by the
employer excluding clerical, administrative and security employees.
This scope of employees insured that the union would be elected
where the majority of the employer's employees desired to be
represented by a union, but that where a majority of the employees
did not desire to be represented, their terms and conditions of
employment, and their workplace, would not be impacted by the
presence of a labor union. Moreover, the "wall to wall"
unit insured that there was not a fracturing of the employer's
workforce where several unions represented several small groups of
employees making the collective bargaining unmanageable for any of
the parties.
This logical and longstanding policy of Democratic and Republican
majority labor boards has been scuttled.
In Specialty Healthcare, the employer operates a nursing
home and rehabilitation center in Mobile, Alabama. Among the job
classifications – or job titles – at this
facility is a "CNA", or, certified nursing assistant.
Rather than seeking to represent all of the employer's
employees, the union petitioned for a bargaining unit consisting
only of the CNAs. The employer objected on the basis of the
NLRB's decision in Park Manor Care Center, 305 NLRB
872 (1991) and the Board's longstanding practice of not
certifying "fractured" units but insisting that all of
the employer's employees who shared a community of interest
comprised an appropriate bargaining unit. The NLRB, through a
regional director, initially concluded that this petition was
appropriate and directed an election be held amongst only the
employer's full and part time CNAs. The employer appealed this
decision, in essence, by asking the NLRB to review the regional
director's decision. The NLRB not only accepted this obligation
but requested briefs from interested parties regarding whether its
decision in Park Manor and its longstanding practice of
certifying only bargaining units of all of the employees with a
community of interest should remain the law. Significantly, the
NLRB also requested interested parties' positions regarding
whether its decision should have application in all industries
rather than just the health care industry which maintains unique
standards under the National Labor Relations Act.
After inviting and, presumably, considering this argument, the NLRB
reversed the Park Manor decision and will now permit
appropriate units to be petitioned-for and certified even when
larger and "more appropriate" bargaining units exist in
the employer's workforce.
"Nor is a unit inappropriate simply because it is small. The
fact that a proposed unit is small is not alone a relevant
consideration, much less a sufficient ground for finding a unit in
which employees share a community of interest nevertheless
inappropriate."
To that end, the NLRB wrote that it will focus on the community of
interest of the employees, the extent of common supervision,
interchange of employees, geographic considerations "etc., any
of which may justify the finding of a small unit." An employer
can challenge the determination regarding the composition of the
unit, but the Board will now require that the burden to establish
that a bargaining unit is not appropriate will be an
"overwhelming" community of interest between the
employees in the petitioned-for unit and the larger
workforce.
"...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 other 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 NLRB did agree that cases may exist where the petitioned-for
unit inappropriately "fractured" the workforce. For
example, had the union petitioned only for CNAs working the night
shift vs. all employees, or only CNAs working on the first floor
and not the second floor, but it is eminently clear that the Board
will direct elections and certify bargaining units of employees
simply because they have one job title or job function and permit
the union to ignore the other employees with distinct job titles or
functions even when that means that the minority of the employees
overall support the union. The reality is that all of the employees
will have to deal with the union.
Employers should take no stock in some press suggestions that this
decision has limited application to the health care industry. There
is no holding or assurance that the rule is limited to the health
care industry merely because the case arose within the health care
industry. Rather, employers will be well served to heed the opening
of Member Brian Hayes dissent which is absolutely accurate:
"Make no mistake. Today's decision fundamentally changes
the standard for determining whether a petitioned-for unit is
appropriate in any industry subject to the Board's
jurisdiction."
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