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September 2, 2011

NLRB Issues Three New Union-Friendly Decisions

On August 30, 2011, the National Labor Relations Board (“the Board”) issued three major decisions, all of which can be described as “union-friendly.” 

  1. Specialty Healthcare and Rehabilitation Center of Mobile

In Specialty Healthcare, the Board announced a new approach for determining what constitutes an appropriate bargaining unit in non-acute health care facilities such as nursing homes and rehabilitation centers.  The Board ruled that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees, or even just those in a service and maintenance unit, as would be the case in an acute care hospital (see below).  The Board’s decision overrules its 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in such facilities.  

The Board will now use the same “community-of-interest” standard that it applies at other workplaces to determine an appropriate unit in non-acute health care facilities.  As the Board stated, “[w]e have concluded that the Park Manor approach to determining if a proposed bargaining unit in a nursing home is an appropriate unit has become obsolete, is not consistent with our statutory charge, and has not provided clear guidance to interested parties or the Board.” 

The Board actually went beyond that traditional standard by enumerating a new rule (applicable to cases in all industries) that an employer objecting to the petitioned-for unit and arguing for a larger unit must show the excluded employees share “an overwhelming community of interest” with those in the petitioned-for unit.  This new standard places upon employers the burden of proving the “overwhelming” community of interest, whereas the Board had previously examined whether the excluded employees were “sufficiently distinct” to warrant their exclusion.  As the dissent by Board Member Hayes warned, such a standard will likely lead to a proliferation of smaller bargaining units, as it will be “virtually impossible” to prove that additional employees should be included in a voting unit.

Unit determinations in acute care facilities remain governed by the Board’s rule that eight different possible bargaining units of employees are considered “presumptively valid.”  Those possible units are: 

  • Doctors
  • Registered Nurses
  • Other Professionals
  • Technical Employees
  • Business Office Clericals
  • Guards
  • Skilled Maintenance Employees
  • All Other Employees (such as CNAs and housekeepers)

These presumptively valid units were established by rulemaking in 1989, but there is language in the majority opinion in Specialty Healthcare that undermines the theoretical underpinnings of that rule.          

As a result of the Specialty Healthcare decision, labor unions may seek to represent smaller groups of employees in non-acute facilities.  Limiting the size of the bargaining unit generally makes it easier for unions to win elections. 

  1. Lamons Gasket Co.

In Lamons Gasket Co., the Board ruled that employees may no longer immediately object to an employer’s voluntary recognition of a union without an election (such as via “card check” or other showing of support by a majority of employees).  The Board had previously held in its 2007 decision in Dana Corp., 351 NLRB 434 (2007), that 30% of unit employees and rival unions could immediately challenge a union’s status as collective bargaining representative if the union had been voluntarily recognized by the employer, rather than having been certified as the bargaining representative via a Board supervised election.  Under the new standard, a voluntarily recognized union will be protected from such challenges for a period of six months to one year.  The specific length of the voluntary recognition bar will depend on an analysis of several factors that are set forth in the Board’s decision in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001).  Unions that are certified via a Board supervised election enjoy protection from decertification or challenge from a rival union for a period of at least one year.

  1. UGL-Unicco Service Co.

In this decision, the Board ruled that, in cases involving a successorship (where a new employer is obligated to recognize and bargain with the union), the employer, employees, or a rival union may not immediately challenge the continued majority status of the current union.  The decision overruled the Board’s 2002 ruling in MV Transportation, 337 NLRB 770 (2002) which had created an immediate window after a sale or merger for the union’s status to be challenged.  The Board’s adopted a “successorship bar” to increase stability, positing that “[t]he stability that the Act seeks to preserve is the stability of the existing collective-bargaining relationship, which an insulated period obviously protects.”  As the decision argues, “a new bargaining relationship . . . rightfully established through an employer’s compliance with successorship requirements must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.”

Three situations arise when the successor takes control.  If the successor formally assumes the collective bargaining agreement, which has at least 90 days remaining before expiration, traditional “contract bar” rules will apply.  If the employer merely complies with the existing collective bargaining agreement, pending negotiation of new terms and conditions, the union is insulated from challenge for six months.  However, if the new employer exercises its right to impose new terms and conditions of employment, the protections will last from six months to one year, depending upon the Lee Lumber factors.  As a result, for at least six months successor employers will be unable to challenge the majority status of a union, even if there is a good-faith basis to believe that a majority of the bargaining unit members no longer wish to be represented by the current union. 

*  * * *

Board Member Hayes strongly dissented in all three opinions.  For example, he argued that the majority’s  opinions in Lamons Gasket and UGL-Unicco reflect “a purely ideological choice, lacking any real empirical support and uninformed by agency expertise.”  Furthermore, he argued that the opinions are “inconsistent with, and an attack on, Supreme Court precedent.”  In Specialty Healthcare, he accused the majority of engaging in rulemaking without following the Administrative Procedures Act or applicable executive orders. 

Henceforth, employers will find it even more difficult to remove labor unions, even if they can show employee dissatisfaction.  We are available to discuss the potential ramifications of these decisions.

1Under traditional “contract bar” rules, incumbent unions are generally free from decertification during the life of the collective bargaining agreement.  A “window” opens 90 days before the expiration of the contract during which a decertification petition or a petition by a rival union may be filed.  That window closes 60 days before the expiration and then reopens upon expiration.  The window is different in the health care industry, where it is open from 120 days to 90 days.