The NLRB continues its administrative labor law reform by overruling cases that simply do not jive with its current political ideology.  As Chairman Liebman departs after almost 14 years of service under three presidents, the NLRB will once again be short-handed as there will be only three (3) members unless and until the President can get one or two more members confirmed, or until he makes a recess appointment.  As Chairman Liebman is exiting her position, the NLRB has been busy getting out some decisions in which it has overruled existing case law while it has three (3) votes of the four (4) existing members to do so.  Traditionally, the NLRB is supposed to have five (5) members and at least a 3/5ths majority is desired when overruling precedential cases.  Member Becker’s recess appointment expires on December 31, 2011,  and the Board will, once again, be reduced to two (2) members.  

The 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile finds that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. It overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities.  The majority stated that the appropriate unit determinations for  employees in non-acute care medical facilities will be subject to the same “community of interest” standard  traditionally applied at other workplaces.  The NLRB ruled that where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit.  

In dissent, Member Brian Hayes stated that he would adhere to Park Manor. “which established a balanced legal standard maintained in non-acute care health care unit cases without controversy for 20 years (and without any objection from the party seeking review in this case).” 

He also disagreed that the majority’s statement of the community of interest test was consistent with precedent.  In his view, “the majority accepts as the definitive standard for unit determinations in all industries an ‘overwhelming community of interest’ test that will make the relationship between petitioned-for unit employees and excluded co-workers irrelevant in all but the most exceptional circumstances.

As Member Hayes points out, the test approved by the majority not only impacts cases in the non-acute health care area, but all employers.  If the “overwhelming community of interest” standard, which the majority says is “existing” law, is followed, it would mean that in almost all cases, the union’s petitioned for unit will likely be deemed appropriate, despite the fact that Section 9(c)(5) of the Act itself says that the extent of the union’s organizing is not controlling.  While extent of organizing may be considered as a factor, when this majority says that the employer will have to prove an “overwhelming community of interest” of employees outside the union’s proposed unit in order to get them in the unit, that is code for meaning the employer loses.   This decision could result in a union going in any company and picking off distinct groups of employees in a plant or office, petitioning for an election in that small unit, then moving on to the next group.  Couple this decision and the NLRB’s expected issuance of the proposed ”quickie election” rules and employers will have little opportunity to defend against the fracturing of its workforce into many small units of employees who have a community of interest among themselves, to the exclusion of other employees who will also be impacted by the decisions of the unit petitioned for by the union.    The standard set forth by the majority effectively eliminates Section 9(c)(5) from the Act. 

W. G. Trumpeter
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