After identifying issues neither the union nor the employer raised, and inviting interested parties to submit briefs on those issues, the NLRB has issued a union-friendly decision. In the process, the NLRB has reversed a 20-year-old precedent for bargaining unit determinations in nursing homes, rehab facilities, and other non-acute health care facilities. This is one of three major decisions that were included in the flurry of activity at the end of Chairman Liebman’s term.
In Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83 (Aug. 26, 2011) (pdf), the NLRB found that a group of Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. This decision overrules the NLRB’s 1991 decision in Park Manor Care Center, 305 N.L.R.B. 871, which had adopted a special approach for bargaining unit determinations specific to nursing homes, rehabilitation centers, and other non-acute health care facilities.
The employer in Specialty Healthcare had argued for a facility-wide "service and maintenance unit" that included non-professional employees such as cooks, dietary aides, activity assistants, maintenance assistant, and the medical records and data entry clerks, among many other job titles. In other words, the employer argued that the unit include those whom it believed had been typically included in approved units in nursing homes under Park Manor.
In a 3-1 decision, the NLRB held that Park Manor was "obsolete" because it relied, in part, on an administrative rulemaking record from the late 1980’s. In doing so, the NLRB substantially redefined the standard for an appropriate bargaining unit. Under the NLRB’s new rule, where an employer argues that a proposed bargaining unit inappropriately excludes certain employees, the employer will now be required to prove that the excluded employees share "an overwhelming community of interest" with employees in the proposed unit.
Member Hayes (R), as he has done multiple times since his Senate confirmation, issued a dissenting opinion. He rejected the majority’s conclusion that Park Manor was obsolete as not supported by any evidence in the record of the case. He further argued that the new "overwhelming community of interest" test was not supported by circuit court or prior NLRB rulings. He concluded by discussing the "vast practical ramifications" of the majority’s ruling, including encouragement to unions to "engage in incremental organizing in the smallest units possible." This new standard, combined with the NLRB’s proposed rule to expedite the union election process, will make it "virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through [NLRB] litigation."
The implications for the labor professional are significant:
- First, the decision permits unions to single out a particular job classification, convince a majority of those in that job classification to vote for the union, and then file a petition seeking to represent only those employees.
- Second, it raises the possibility that many different unions could organize different job classifications. Thus, a nurses union could represent nurses, a service employee union could represent janitors, and yet another union could represent dietary aides. The possible proliferation of bargaining units could pose substantial challenges for labor professionals.
- Third, while the NLRB decided this case in the non-acute health care setting, it is easy to see the new standard facilitating a renewed era of union organizing.
Employers, and certainly those in the non-acute healthcare industry, should review the decision and consider its implications for their unique circumstances.