NLRB Provides Representation Case Data, Allows Submission of Supplemental Briefs in Specialty Healthcare
In a case questioned as evidence of the National Labor Relations Board’s desire to implement significant change in the way it determines appropriate units for bargaining, the NLRB last week extended the time for submission of supplemental briefs by interested parties. In February 2009, the Board granted the Employer’s Request for Review in Specialty Healthcare & Rehabilitation Center of Mobile. On December 22, 2011, over the dissent of Member Brian Hayes, a three-Member Board majority issued a Notice and Invitation to File Briefs, 356 NLRB No. 56 (Dec. 22, 2010).
In this case, the union had petitioned for a unit of Certified Nursing Assistants (CNAs) only at the employer’s nursing home, excluding all other non-professional service and maintenance employees. The Regional Director’s determination that the limited petitioned-for unit was appropriate suggested further expansion of the application of the Board’s 1989 final rule regarding appropriate units in acute care hospitals over non-acute care facilities like the nursing home at issue.
The Board has invited interested parties to file briefs in connection with the case. The variety of questions presented explores whether and in what types of cases the Board should move away from its traditional case-by-case analysis of the appropriateness of a petitioned-for unit in favor of a more categorical approach. Briefs were originally due on or before February 22, 2011, but that deadline was previously extended to March 8, 2011. Responsive briefs are due tomorrow.
Over a dozen parties filed amicus briefs, including the American Hospital Association and American Society for Healthcare HR Administration, Retail Industry Leaders Association (RILA), Coalition for a Democratic Workplace, the Chamber of Commerce, AFL-CIO, SEIU, IUOE, and Senators Michael Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA).
Many of the briefs filed by labor organizations focus predominantly on the facts of Specialty Healthcare, choosing to answer the Board’s questions regarding the propriety of the CNA-only unit in the nursing home at issue in that case.
In a brief prepared by Proskauer, however, RILA asserts that the Board’s consideration of a presumptive rule here is based on Member Becker's unsuccessful effort in Wheeling Island Gaming, 355 NLRB No. 127 (August 27, 2010) to adopt as appropriate a very limited unit of just the "poker dealers" at a casino, while excluding all other card dealers. RILA argues that a presumptive rule based on "employees performing a job" or simply on a "proposed unit" – as considered here -- violates the Board’s mandate, the legislative history of the Act and relevant case law. The broader management concern:
In place of predictability, the Board’s rule would insert the unknown. Instead of stability, it would offer the potential for chaos, as employees currently – and, according to Board precedent, appropriately – placed within homogeneous single-facility bargaining units could be splintered into departmental fiefdoms, each of which would seek to gain leverage and personal advantage. Put simply, 60 years of success indicates there is no problem with the single-store, single-unit presumption the Board currently applies. History likewise suggests that there is every reason to maintain this stability, and not to adopt the change suggested by the Board’s questions.
In addition, Senators Enzi, Hatch and Isakson requested that the Board provide representation case data which might be relevant to the issues under consideration. By letter dated March 7, 2011, Reps. John Kline (R-MN) and Darrell Issa (R-CA) expanded upon this request, asking the Board to post requested representation case data on the Board’s website. Both groups of legislators asked for an extension of time within which to file briefs once the information was provided.
In response, the Board has posted representation case data for the years 2000 to 2011 on NLRB.gov. Moreover, the Board has granted interested parties permission to file ten-page supplemental briefs, based on issues implicated by this data alone, by March 29, 2011.
