Court's Decision Paves the Way for Micro-Units in Union Representation Elections
August 30, 2013
The U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee), recently issued an opinion affirming the National Labor Relations Board’s broad discretion in delineating a bargaining unit, and holding that a bargaining unit consisting only of Certified Nursing Assistants (CNAs) at a nursing home was appropriate.
Case Background: In Kindred Nursing Centers East, LLC, v. NLRB, the employer, a nursing home operator, placed its employees in one of eight separate departments. These departments include nursing, nutrition services, resident activity, maintenance, administration, medical records, central supply, and social services. The heads of nearly all of these departments ultimately report to the nursing director. Included within the nursing department are 53 CNAs. After receiving a union petition to represent the CNAs only, the employer sought to include in a bargaining unit along with CNAs several other employee classifications, such as cooks, dietary aides, resident activity assistants, and the social services assistant. However, the Regional Director found that the “micro-unit” consisting only of CNAs was appropriate. The union won the election and the employer appealed to the NLRB, which affirmed the Regional Director’s decision, issuing an opinion entitled Specialty Healthcare and Rehab. Ctr. of Mobile. The NLRB in Specialty Healthcare found that limiting the bargaining unit only to CNAs was appropriate, and that for an employer to successfully add other service and maintenance employees to the CNA voting unit (dietary, housekeeping, maintenance and activities, for example) the employer must show that these other employee groups share an “overwhelming community of interest” with the CNAs.
The Court’s Ruling: The Sixth Circuit upheld the NLRB’s ruling in Specialty Healthcare. The Board’s Specialty Healthcare decision overruled an earlier Board case known as Park Manor, which set forth the standard in determining the appropriate unit in non-acute healthcare facilities, including nursing homes. The NLRB in Park Manor used a “practical” or “empirical” community-of-interests test that generally resulted in a voting unit that included a broader array of service and maintenance classifications. The employer argued on appeal that in deciding Specialty Healthcare, the NLRB abused its discretion by making changes to the law through adjudication rather than rulemaking. The Sixth Circuit, disagreed, noting that the Board may overrule some of its precedents in adjudication, provided it explains its reasons for doing so. Thus, the Court found that NLRB’s adoption of the “overwhelming community of interest” standard was appropriate.
Impact of the Ruling: By affirming the Specialty Healthcare decision, the Court has no doubt emboldened the NLRB in allowing unions to organize in small units based on “readily identifiable” groupings. This includes employees who carry the same job title or classification (such as CNAs), without regard to the interrelationships with other job classifications, the particular work environment or how other classifications of employees factor into the unit. In other words, a union may organize in as small a unit as it has support. This case establishes a high burden of proof for a health care employer to show that an employee who is not a CNA should be included in the unit. Significantly, the language in this decision leaves open the possibility of broad application to all industries in future cases.