The NLRB Gives Unions a Boost … Again

by John R. Merinar, Jr.

As readers of this blog know well, union organizers all over the country have had the chance to act like children on Christmas morning an awful lot lately thanks to the National Labor Relations Board.

Putting aside for a minute the fact that things have gotten so bad a member of the House just proposed a bill called the National Labor Relations Reorganization Act of 2011 in an effort to abolish the NLRB, those organizers got a real treat about a month ago when news spread about the NLRB's decision in Specialty Healthcare and Rehabilitation Center of Mobile.

The case deals with the question of whether a union can petition for an election among certified nursing assistants working in a nursing home, or must the union also include in its petition all other non-professional service employees.  Prior to Specialty Healthcare, the rule was that a bargaining unit consisting of just nursing assistants was not appropriate.  Unions had to include in their petitions all other non-professional service employees working with the nursing assistants at the nursing homes they sought to organize.

Of course, unions generally did not like this rule, because they find it more difficult to garner support and to get authorization signed cards in larger, more diverse units.  They more often than not would prefer the piecemeal approach, trying to organize the smallest units they can justify under the "community of interest" test.

After Specialty Healthcare, however, unions now have what they have long wanted - license to organize smaller groups consisting of just nursing assistants.  Explaining its decision, the Board wrote that from here forward, if a union petitions for a unit, and the employer wishes to challenge that unit by contending that other employees should also be included, the employer must establish that the additional employees share an "overwhelming community of interest" with those employees who were identified in the petition.

Some think that Specialty Healthcare is going to be a problem only within the nursing home industry, or perhaps within the health care industry.  However, it seems far more likely that the current Board will employ the same reasoning across all industries, thereby fundamentally changing the playing field.  This is a very real danger for employers in these kind of environments because the Board's language does not suggest that their test will apply only for nursing assistants and other non-professionals in nursing homes.

To the contrary, the Board seemed to signal that this new approach will be applied whenever an employer argues that a union has excluded employees from a petitioned-for unit who should have been included.  Admittedly, it remains to be seen exactly how the Board will develop the concept of what constitutes an "overwhelming community of interest," but there is no cause for hope that this will be an easy test for employers to satisfy.

While there hasn't been a loud outcry about the unfairness of this decision, which potentially gives unions the latitude to pick exactly the right group that they believe will vote for them in an election, employers will see the impact.  The Board has historically disfavored piecemeal union organizing because it can lead to labor relations chaos.  Unfortunately, the Specialty Healthcare decision from the current Board may open up the door to exactly that.

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