On August 30, 2011, the National Labor Relations Board ("NLRB" or "the Board") released a much-awaited decision making it easier for small groups of employees at health care facilities (other than acute-care hospitals) to unionize. In its 3-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile (357 NLRB No. 83, 8/26/11), the NLRB ruled that a group of 53 certified nursing assistants at an Alabama nursing home could vote on representation by the United Steelworkers union without including any other employees of the home in the potential bargaining unit.

This decision overrules 20 years of precedent regarding how to determine the composition of bargaining units in non-acute health care facilities. The Board’s 1991 decision in Park Manor Care Center had set forth special rules for determining the composition of a bargaining unit at such health care centers. The majority in Specialty Healthcare called the Park Manor decision an “obsolete” ruling that did not provide clear guidance to employees or employers and noted that the Board would henceforth return to same “community of interest considerations” when evaluating proposed bargaining units at such facilities that the Board traditionally has applied in other workplaces.

The majority wrote that “if the Board finds that the employees in (a proposed group) share a community of interest, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate.” Accordingly, even if an employer could demonstrate that employees in a proposed bargaining unit shared a community of interest with other employees outside of the proposed unit, the proposed unit would not be inappropriate under the National Labor Relations Act. Moreover, in any case where an union attempts to certify a group of employees sharing a community of interest, an employer arguing for a larger, more inclusive group will bear the burden of showing that employees in a larger unit share “an overwhelming community of interest” with the employees in the proposed unit. This test, the NLRB majority noted, is drawn directly from Board precedent and has been endorsed by United States Court of Appeals for the District of Columbia.

Dissenter decries 'ideological' ruling

Dissenting from the majority, NLRB Member Brian Hayes wrote that the majority overruled Park Manor for “purely ideological purposes,” and claimed that the bargaining unit test adopted by the majority “obviously encourages unions to engage in incremental organizing in the smallest units possible.” Decrying the “vast practical implications” of the majority’s decision, Hayes also noted that the new standard requiring employers to show an “overwhelming community of interest” makes it “virtually impossible” for an employer opposing the unionization of a “micro-unit” of employees “to prove that any excluded employees should be included.” Quoted in a New York Times article on the Specialty Healthcare decision, Michael Eastman, executive director of labor law policy at the United States Chamber of Commerce, agreed, saying that the NLRB’s decision in Specialty Healthcare “makes it easier for unions to gerrymander who is in a bargaining unit to help them be successful in organizing.”

The Board’s decision in Specialty Healthcare to certify a bargaining unit of only certified nursing assistants suggests that bargaining units consisting of only one job category may be endorsed by the NLRB in many other industries as well. By allowing them the opportunity to cherry-pick small groups of favorably disposed employees to organize, the NLRB has offered unions the ability to establish a foothold presence in workplaces from which the union can work to expand. In the wake of the decision in Specialty Healthcare, such small groups of employees at non-union employers are likely to be targeted by union organizing efforts in many industries in order to establish such a union presence. It should be clear to employers that the organizing of small groups of employees may create significant challenges, producing a workplace environment that is fractured, more expensive and more difficult to manage.

In addition, unaddressed by the Specialty Healthcare decision is the possibility of multiple unions seeking to represent different “micro-units” of employees at an employer’s single workplace, each alleging a different “community of interest” separate from other employees. Such circumstances could lead to significant difficulties for employers, including the possibility of having multiple collective bargaining obligations and conflicting or overlapping obligations to different groups of employees.

The implications of this decision will be different for each employer based on its unique workplace and workforce. However, employers would be wise to work with legal counsel to analyze job classifications, job descriptions and organizational structure to minimize the risk associated with potential multiple union organizing efforts aimed at small groups of employees in light of the Specialty Healthcare decision. Moreover, periodic union avoidance training is recommended as well.

Two other pro-union rulings also issued

The NLRB’s news release accompanying the Specialty Healthcare decision, as well as the text of the decision itself, are available here. The Specialty Healthcare decision was one of three significant pro-union decisions issued by the Board on August 26, 2011. In addition to Specialty Healthcare, the Board determined in Lamons Gaskets Co. (357 NLRB No. 72) that a “voluntary recognition bar” blocks any challenges to a union’s majority status for a “reasonable period of time” following an employer’s voluntary recognition of the union, expressly overruling its decision in Dana Corp. Also, in UGL-UNICCO Service Co. (357 NLRB No. 76), the NLRB ruled that a “successor bar” creates a presumption of a union’s majority status for a defined period of time after the transfer of ownership of a company, preventing any challenges during that time to the incumbent union’s status. These decisions, and the accompanying press release, are available here.