Friday, August 23, 2013

Trouble on the horizon? Smaller bargaining units.

Normally, a decision concerning a NLRB bargaining unit determination in the healthcare industry would be of little interest to employers.  Not this time.  In Kindred Nursing v. NLRB, the 6th Circuit enforced an order finding a unit of certified nursing assistants was appropriate instead of a larger unit sought by the employer.  The Board had adopted a standard for challenges to the petitioned for unit by an employer which seeks a larger unit; an employer is required to establish an "overwhelming community of interest" with employees in the proposed unit. Under the Board's standard, it assesses whether the petitioned for unit is an appropriate unit using traditional community of interest principles.  If the standard is met, the employer must demonstrate that there is no legitimate basis upon which to exclude certain employees from the larger unit because the traditional community of interest factors overlap almost completely.

The court rejected the argument that the Board's standard was a material change from its existing policy. The court stated that the Board had used its prior cases in making its determination.  In any event, the court noted that its standard of review requires it to uphold the Board's determination unless it is shown to have been arbitrary, unreasonable, or an abuse of discretion.  It did find such an abuse in this case. The court rejected the employer's argument that there had been an abuse of discretion by the making of policy through adjudication.  The Board's decision had led to the introduction of Representation Fairness Restoration Act in the House which would prevent the Board from using the criteria to find similar small units in other cases.

With the full Board now in place, it is likely that the overwhelming community of interest standard will be applied in other cases and not limited to the healthcare industry.  The ability of unions to organize a smaller unit and to be able to withstand an employer challenge raises serious concerns for employers.  There is no game clock in union organizing.  It is usually easier to organize a smaller group of employees.  If a union is successful with a smaller group of employees, it can establish a beachhead for further organizing which is much easier from the inside.

The criteria the Board applies in making the unit determination includes:  whether the employees are in separate departments; whether they have distinct skills and training; whether the job functions and work are similar; whether the work is functionally integrated with other employees; whether they have frequent contact with other employees; whether there is frequent interchange of employees and common supervision; and whether the terms and conditions of employment are similar.  Employers can apply these factors to their work structure and operations to get an idea of whether they would be able to establish a "complete overlap.''  The more job descriptions and categories; the more supervisors; and the more specialized the work functions of the workforce; the less likely an employer can successfully challenge a smaller unit request.  Employers should not wait to determine how their workforce could be divided by a union; they should balance structural job changes with the ability to do the job before the union arrives.

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