In a decision written just prior to the departure of NLRB Chair Liebman, the NLRB made it dramatically easier for unions to insert themselves into virtually any workplace. In a decision that went well passed the issues raised on review by the parties, the Board not only overruled two decades of labor jurisprudence with respect to appropriate bargaining units in healthcare facilities, it rewrote the law with respect to the size and nature of bargaining units in almost any industry.
The case, Specialty Healthcare and Rehabilitation Center of Mobile, started as a relatively straightforward bargaining unit determination case in a so-called nonacute healthcare facility, in this case a nursing home. The United Steelworkers ("USW") petitioned to organize some 53 certified nursing assistants (CNA's) at the nursing home. The employer argued that the 53 person bargaining unit was inappropriate, and that the smallest bargaining unit that should be allowed is one that included other employees such as maintenance workers, supply clerks, cooks, and various activities directors. The employer's request was based on long-standing guidance from the NLRB in a case called Park Manor, which set certain factors and minimal standards with respect to bargaining unit composition.
Neither the USW nor the employer asked the board to overturn Park Manor, but only to apply its standard in determining appropriate bargaining units at a healthcare facility to the facts of the case. Instead, the Board expressly overruled the Park Manor standard, and inserted in its place a new standard that applies to all non acute-healthcare workplaces subject to the Board's jurisdiction. The new standard opens the door to significant union penetration into numerous workforces, in some cases with bargaining units as small as two employees.
What the Board did was dramatically shift the balance of power in a union organizing campaign by making a petitioned-for bargaining unit virtually unassailable in terms of size or scope. The Board determined that where a petitioned-for unit shares a "community of interest" (typically in the form of similar job descriptions or duties), then the bargaining unit membership cannot be challenged without demonstrating that there is an "overwhelming" community of interest between the included employees and the employees excluded from the proposed bargaining unit. As the dissent in this case quickly recognized, a presumption that a union-proposed unit is proper unless there is an overwhelming community of interest with excluded employees effectively gives controlling weight to the union's choice of bargaining units. This is because the union will propose a unit comprised of the employees it has organized, and no more. The Board had previously rejected this type of "same job, same place," standard, but stare decisis is not a concept with much relevance to this particular group of Board Members.
In fact, the new test encourages unions to organize the smallest bargaining units possible, so that they can absorb an employer's workforce piecemeal. The possibility of a local grocery store, for example, having to deal with separate bargaining units (each with its own collective-bargaining agreement) made up of cashiers, stocking clerks, general laborers, and bagging clerks is fraught with inefficiency and concerns about unmanageable labor demands, affecting store operations two to five employees at a time. But such a standard does make it much easier for unions to recruit members, especially in workforces with no union presence at all. This is especially true if the Board's recently proposed rule--designed to speed up elections, limit the ability of employers to counter long-running union organizing campaigns, and limit an employer's rights to appellate review--is approved, as it almost certainly will be.
One possible employer response is to spread job duties as thinly as possible throughout a workforce, i.e., to make each position responsible for as many different jobs as possible. This would prevent a skills-oriented, piecemeal organizing effort. Of course, this will reduce economic efficiency, and limit the number of people qualified to work in a position that requires wildly different skill sets. But that might be a small loss compared to having to deal with an organized labor element.I've previously noted this administration's marked efforts to aid unions (some of its chief campaign donors) in increasing their membership and financial power. This latest decision is another step along that path.
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