NLRB Chair Wilma Liebman used her last day in office to help Member Becker realize his long held dream that unions should be able to organize sub-units of an employer — such as employees of one department — as opposed to an entire facility. In Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the NLRB has clearly signaled that it now endorses Member Becker’s long held belief that smaller units — such as units that consist of only one department, or perhaps even one job classification — should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.

Specialty Healthcare involved a non-acute care nursing home.  The Regional Director certified that the petitioned for unit of full and part time CNA’s (certified nursing assistants) was an appropriate unit for an election.  The Employer filed a request for review.  In granting the request, the Board also made an unprecedented request that the parties address eight specific questions, including experiences under the Board’s 1991 decision in Park Manor Care Center, 305 NLRB 871.  This request was particularly surprising given that the employer had not asked for Board to re-visit that decision in connection with its request for review.  More troubling, however, was the Board’s request that the parties also address whether:

the Board [should] find a proposed unit appropriate if the employees in the proposed unit are ‘readily identifiable as a group whose similarity of functions and skills create a community of interest? 

In other words, should the Board approve smaller units for distinct groups of employees?

The Board has now answered this final question with a resounding “yes.”

In a stunning reversal of years of NLRB precedent.  As a starting point, the Board has reversed its 1991 decision in Park Manor Care Center, and held that its traditional community of interest test would now be applied to non-acute health care facilities.  

More importantly (and more troubling), however, the Board’s decision unambiguously states that when a group of employees or union petitions for an “identifiable” group of employees, that unit should be an appropriate unit unless the employer (or another interested party like another union) demonstrates that excluded employees in a larger unit share “an overwhelming community of interest with those in a petitioned for unit”.  In other words, the NLRB is clearly signaling that a union’s expressed desire to represent some subset of the employee population – such as one job classification, or one department —  should control absent overwhelming evidence that the requested unit would constitute a “fractured” unit. As an example, the Board noted that if only some, but not all, of the CNA’s, petitioned for a union, that would likely be a fractured unit, or that a unit consisting of only night shift CNA’s “might” be a fractured unit.  The Board’s decision clearly rejects the claim that one classification of employees was an inappropriate unit just because other employees could be included to make a more appropriate unit.  This is consistent with Member Becker’s stated view that on the questions of unit determination, voter eligibility and campaign conduct, only the employee constituency and their potential union representatives should be heard.”

Combined with the Board’s proposed rule changes to permit “quickie” elections and avoid limiting litigation and review of voter eligibility issues, the Specialty Healthcare decision is one more step by the Board to ensure the potential proliferation of small bargaining units for employers across the country – a fact not lost on the dissent:

It is not difficult to perceive my colleagues’ overall plan here.  First, in this case, they define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included….next, by proposing  to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.  This initiative puts our agency beyond the pale of reasoned adjudication.

We will have to wait to see how this sweeping change fares in the courts. Earlier this year, former Chairman Peter Schaumber argued that the Board’s wide solicitation of amicus briefs in this case was not sufficient.  He asserted that the Board was bound to follow the APA’s rulemaking procedures, "including conducting cost benefit assessments and providing the public notice and a full and fair opportunity to comment." Arguing against the type of holding we have seen today, former Chairman Schaumber declared:

A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. … That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit….