• NLRB Clears Way for "Made to Order" Union Bargaining Units Agency Checks Off Another Box on Its Agenda to Spur Organizing
  • September 9, 2011 | Authors: Roger P. Gilson; Edward V. Jeffrey; Roger S. Kaplan; Thomas V. Walsh
  • Law Firms: Jackson Lewis LLP - Stamford Office ; Jackson Lewis LLP - White Plains Office ; Jackson Lewis LLP - Melville Office ; Jackson Lewis LLP - White Plains Office
  • National Labor Relations Board Chairman Wilma Liebman has ended her tenure at the agency with a spate of portentous decisions. Most prominent among them perhaps is Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), one of several cases in which the Board had invited briefing by interested members of the public.  Revisiting a non-controversial decades-old bargaining unit standard unique to non-acute care health-related facilities, the Board majority seized the occasion to fashion a new rule, ultimately affecting all employers, in which it would approve for union representation “any petitioned-for unit readily identifiable as a group of employees who share a community of interest,” unless the employer or other opposing party could demonstrate an “overwhelming” community of interest in a larger unit. 

    At issue in Specialty Healthcare was an NLRB regional director’s decision, finding that a bargaining unit comprised solely of a nursing home’s certified nursing assistants was an “appropriate” unit in which to hold an election and (if the union won) for purposes of collective bargaining, even though the employer contended other service and maintenance workers in the facility should be included, as well.

    Then and Now

    The Board determines the propriety of a bargaining unit sought by a union by assessing the workplace policies, practices, duties, and terms and conditions of employment of the various employees.  A unit comprised solely of one type of employee may or may not be appropriate. However, it has long been recognized that there is a special consideration for healthcare employers. 

    In amending the National Labor Relations Act in 1974, Congress specifically admonished the NLRB to avoid a “proliferation” of bargaining units within healthcare facilities.  The legislators were concerned that labor disputes among fragmented bargaining units in healthcare institutions could seriously harm patient care.  While this legislative caution was not embodied in the statute, the Board repeatedly has expressed its understanding that Congress intended to avoid unnecessary multiplicity of units within nursing facilities. In 1989, the Board adopted a formal rule limiting the number of units within acute care hospitals.  This rule did not reach nursing homes, but did reflect continued recognition of the non-proliferation warning regarding such facilities. 

    Guided by the Congressional concern underlying the rulemaking, and indeed, by decisions even predating the rulemaking, the Board consistently found that nursing assistants at long-term care facilities were properly placed in a larger unit of other employees, often referred to as a “service and maintenance unit.”

    The present decision changes that.  Among other things, the Board majority held that it need not be bound by the legislative intent of Congress.  The Board asserted a new rule in which the “community of interest” test will be applied in non-acute healthcare facilities without regard to any restriction as to “proliferation.”  Thus, a unit consisting only of nursing assistants was found “appropriate.”  Board acceptance of smaller units as appropriate likely will result in more successful organizing efforts. 

    Moreover, the Board majority went further, extending the reach of Specialty Healthcare beyond the non-acute care industry. If an employer wishes to contest the otherwise appropriate unit sought by the union, it held, the company must present evidence that the excluded employees share an “overwhelming” community of interest with the included employees.  This creates an extraordinary, high standard for every industry.  The dissenting Board Member, Brian Hayes, stated that the new test will “make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included.”

    Thus, the unit requested by a union is likely to be accepted by the Board as appropriate for bargaining; any challenger must sustain a heavy - and perhaps impossible - burden. 

    No Formal Rulemaking

    The dissenting opinion notes that no party requested the changes made by the Board.  Creation of such a far-reaching standard, Member Hayes wrote, more properly should be undertaken through a formal rulemaking procedure, as opposed to a single plurality decision.  Ultimately, he recognized that Specialty Healthcare, in conjunction with the Board’s stated intent to expedite elections and limit evidentiary hearings, reveals the NLRB’s intent “to make it virtually impossible for an employer to oppose [an] organizing effort.” (For more on the Board’s proposals to expedite elections and limit evidentiary hearings, see our article, Groups Call Labor Board’s Proposal to Rush Union Elections “Unnecessary”.)

    And what of the possible consequences from the Board’s decision for healthcare facilities, their employees, patients and their families?   More organizing, more NLRB proceedings, more union representatives, more bargaining units, more negotiations, more grievances and arbitrations, more jurisdictional disputes and conflicts, more distractions, more tumult, more stress for patients and their families, and more strikes and picketing: in short, proliferation and its attendant ills.