When a union petitions the National Labor Relations Board to be certified as the bargaining representative for a group of employees, it identifies the group – or "bargaining unit" – that it seeks to represent. The employer of the affected employees can challenge the petition on the ground that the bargaining unit identified by the union is not an appropriate unit for collective bargaining – often by arguing that it excludes employees who share substantial interests with the employees in the petitioned-for unit. A recent decision by the National Labor Relations Board (the “Board”), Specialty Healthcare and Rehabilitation Center of Mobile, dramatically raises the bar for employers arguing that a proposed bargaining unit is inappropriate because it excludes certain employees. In such cases, employers must now show that the excluded employees share an “overwhelming community of interest” with the proposed bargaining unit. While the Board’s decision in Specialty Healthcare was centered on a proposed unit in a non-acute healthcare facility, the ruling has implications for employers regardless of industry. Although the Board’s majority characterized its decision as a return to a traditional “community of interest” analysis, the heightened standard introduced by the decision represents a significant change that should allow unions to create smaller and more easily organized bargaining units over the objections of employers.
The Specialty Healthcare Decision
In Specialty Healthcare, the union petitioned for approval of a bargaining unit composed of 53 certified nursing assistants (“CNAs”) at a non-acute healthcare facility in Mobile, Alabama. The employer contended, however, that under settled Board law, an appropriate unit must also include the facility’s clerks, cooks, and maintenance workers. Specifically, the employer relied on a set of Board regulations defining appropriate bargaining units for acute healthcare facilities and on the Board’s 1991 decision in Park Manor, which established that the units designated by the Board regulations on acute healthcare facilities were also the only appropriate units for non-acute facilities such as the employer's. Because the regulations had been generally understood to place CNAs in units including all service and maintenance workers, the employer contended that the CNA-only unit proposed by the union was inappropriate. The Board’s majority disagreed and, in doing so, overruled Park Manor and set a new standard for employers challenging unit determinations.
Describing Park Manor’s approach as “obsolete,” the Board stated that the decision’s reliance on decades-old rulemaking considerations related to acute healthcare facilities failed to provide meaningful guidance for decisions concerning present-day non-acute healthcare facilities. The Board determined that it should use its traditional “community of interest” approach to determine whether a proposed unit was an appropriate one. Under this approach, the Board examines “whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the [e]mployer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.” Under this test, the Board concluded that the CNAs clearly shared a community of interest and constituted an appropriate bargaining unit.
The Board noted that the National Labor Relations Act requires that a proposed unit need only be “an appropriate unit” – not the only or most appropriate unit. As such, the Board concluded that an employer must do more than demonstrate that a different unit might also be an appropriate one, or even one that would be more appropriate than the proposed unit. Instead, the Board held that when a union has identified an appropriate unit, an employer challenging the unit as too narrow must show that employees in a larger unit “would share an overwhelming community of interest with those in the petitioned-for unit.”
In dissent, Member Hayes wrote that the decision “fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.” Noting that he perceived a difference between “old” and “obsolete,” Member Hayes pointed out that the Board’s regulations reflected a Congressional admonition that the Board should seek to prevent “a proliferation of bargaining units in the healthcare industry.” Member Hayes concluded that the rule announced by the majority would result in the Board “finding as many bargaining units appropriate as petitioned for.”
In most cases, it will likely be very difficult for an employer seeking to challenge a petitioned-for unit to meet the high standard introduced by Specialty Healthcare. In fact, the only instance the majority identifies where such a challenge might be successful would be when a union proposes a “fractured” unit, i.e., a unit that represents only an arbitrary segment of an otherwise appropriate unit. Thus, the outcome of the Board’s decision appears likely to be as the dissent has predicted – the easy approval of most petitioned-for bargaining units. Unions may now more readily gain a foothold in large facilities by focusing their efforts on small groups of employees that are easier to organize, and employers will be hard-pressed under the new "overwhelming community of interest" standard to show that the small group is inappropriate. As a result, a union that becomes the bargaining representative for a small group of employees at an employer's facility will be in a position to organize other segments of the workforce from within. In addition, employers will face an increased risk of finding themselves dealing with multiple, narrow bargaining units that, in some cases, may even be represented by different unions. The complexities and inefficiencies that such arrangements can create mean that pro-active union avoidance efforts are now more important than ever.