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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