In Specialty Healthcare (download here) the NLRB changed the standard for determining what is an appropriate bargaining unit in nursing homes. In so doing the Board claims to apply the traditional analysis as to what is an appropriate bargaining unit. This change will profoundly affect the ability for nursing homes to deal with union organizing activity. More after the jump
A bargaining unit is the group of a particular employer's employees a union seeks to represent. There can be more than one appropriate bargaining unit in an employer's workforce. The presumption is an employer's non-supervisory production and maintenance workforce at a given facility is an appropriate unit, but there may be smaller appropriate units. The point is the employees must share what is called a "community of interests relating to terms and conditions of employment to ensure the rights of employees are fully realized. If employees interests differ too much it would interfere with the overall groups collective right to bargain.In the nursing home industry the bulk of the total employee compliment consists of nursing assistants. They are the employees that provide care and feeding to the residents under supervision of licensed practical nurses and registered nurses. Nursing homes also employ housekeeping and laundry staff, a dietary staff that prepares meals for the residents, and a few employees providing social services and activities for the residents. The decision does a good job of discussing the typical staffing and functions of the staff in a nursing home. In Specialty Healthcare, the union petitioned for a bargaining unit including only the nursing assistants. They were 53 of the 86 nonsupervisory, nonprofessional service and maintenance employees. The employer claimed the NA did not constitute an appropriate unit, relying upon Park Manor Care Center, a 1991 Board decision. Park Manor, the employer argued made units smaller than the over all unit the employer desired presumptively inappropriate. In Specialty, the Board (3-1) rejects the Park Manor result and holds traditional bargaining unit law governs in non-acute healthcare facilities.
Under the traditional approach, if the union petitions for representation of an appropriate unit, the Board will process the petition even if the employer contests the unit, and even if a different unit would also be an appropriate unit. The Board acknowledges the employer's larger requested unit is presumptively appropriate, but that is irrelevant because more than one unit can be appropriate. The employer had argued the union must meet a heightened burden to proceed in a unit different from the presumptively appropriate one.
Using the traditional community of interests standards the Board found the employees in the petitioned for unit share a community of interests and therefore the unit is appropriate for collective bargaining. Merely showing that additional employees (not included in the union's petitioned for unit) does not make the petitioned for unit inappropriate. In laying out the standard for an employer's challenge to an otherwise appropriate unit, the Board quotes language from a circuit court opinion:
“an overwhelming community of interest” such that there “is no legitimate basis upon which to exclude certain employees from it.” [Blue Man Vegas, LLC v. NLRB] 529 F.3d at 421. Using a Venn diagram to illustrate its point, the Court explained that, considering traditional communityof-interest factors, two groups have an “overwhelming community of interest” when the factors “overlap almost completely.” Id. at 422. The Board has articulated the same standard. See, e.g., Laneco Construction Systems, 339 NLRB 1048, 1050 (2003)
This is an important decision for nursing home operators. It affords a labor organization the opportunity to seek representation of component groups of a nursing home workforce. This gives a union the tactical advantage. Employers are immediately more vulnerable to attack when one component group has issues with the employer. But it is not a wholesale departure from traditional labor law principles. Despite the pro-labor result, it is a mainstream decision, despite all you might read elsewhere. Practically speaking the prudent employer will make the simple adjustments to its non-union strategy and with proper implementation succeed.
