As expected, the end of Chairman Wilma Liebman's term at the National Labor Relations Board (NLRB) did not end without an onslaught of radical, precedent-reversing decisions. On August 30, the Board published three very significant 3-1 decisions signed by Liebman in the closing hours of her term.
Appropriate Bargaining Units
In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011) the Board ruled that certified nursing assistants (CNAs) at a nursing home may comprise an appropriate bargaining unit without including other nonprofessional employees at the facility. In so finding, the Board overruled the 1991 Park Manor Care Center decision finding that its "idiosyncratic" approach to determining the appropriateness of a proposed bargaining unit in nursing homes, rehabilitation centers, and other non-acute health care facilities had become "obsolete.”
Even though the Board indicated that it intended to rely on the traditional community of interest analysis, Specialty Healthcare changes the entire focus. Once the union petitions for a unit containing some, but not all, employees who share a "community of interest," Specialty Healthcare, for the first time, places the burden of proof on the employer who seeks to have some or all of those excluded employees included and allowed to vote. In that scenario, the employer will have to show, not just that there is a community of interest, but that there is an "overwhelming" community of interest.
Specialty Healthcare places initial emphasis on the extent of union organizing (even if it is only a single classification), and then shifts the burden to the objecting employer to show "overwhelming" community of interest with the excluded employees to have them included. The scales of the traditional community of interest balancing test have been tilted "overwhelmingly" in favor of unions–and, carried to its logical conclusion, can only result in a proliferation of bargaining units at a single employer.
While Specialty Healthcare deals with a health care entity, the unit determination holding is universal. As Member Brian Hayes said in dissent: "Make no mistake about it. Today's decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board's jurisdiction."
According to J. Hamilton (Jimmie) Stewart, III, a shareholder in Ogletree Deakins' Greenville office: "Specialty Healthcare has a potentially major impact on all unit determination cases in the future. The case involved a single job classification, which presumably always shares a community of interest. Once that is shown, the burden shifts to the employer to show that there is an 'overwhelming' community of interest shared by others that are excluded, which is a very high standard. Specialty Healthcare is a union-friendly decision that, without regard to what the Board majority said, is intended to assist unions to organize ever smaller units and potentially create multiple bargaining units at a single employer."
The Bargaining Relationship
In a pair of cases also released on August 30, the NLRB overruled prior decisions that address the collective bargaining relationship. In Lamons Gasket Co., 357 NLRB No. 72 (August 26, 2011) the Board reestablished the rule barring an election petition for a "reasonable period of time" after voluntary recognition of a representative designated by a majority of employees. This decision overturns the Board’s 1997 decision in Dana Corp.
Lamons returns to the prior law established in Keller Plastics Eastern that requires a "recognition bar" and a "reasonable opportunity" for the parties to bargain before the employees have any opportunity to reject the union. According to Stewart, "Lamons favors top down organizing and card-check over employee Section 7 rights. The 'bar' and subsequent bargaining can result in it being six months to four years before employees have any chance to vote to reject the union or select a rival union. This decision places the institutional interest of the union above the free choice rights of employees."
In the second case, UGL–UNICCO Service Company, 357 NLRB No. 76 (August 26, 2011) the NLRB examined the "successor bar" doctrine. In 1999, in St. Elizabeth Manor the Board "abruptly–without prompting by an amendment to the statute or adverse court decision, and without inviting the views of the labor–management community" reversed decades of precedent. The issue in St. Elizabeth Manor was whether, following the acquisition of a unionized company, employees should be allowed the option to exercise their statutory rights to vote the union out. The St. Elizabeth Manor decision said "no," the interest in "stability of collective bargaining relationships" required that the new employer bargain with the union for "a reasonable time" before employees had the opportunity to decertify.
In its 2002 decision in MV Transportation, the NLRB reestablished the rule that an incumbent union is only entitled to a rebuttable presumption of continued majority status. That presumption did not bar a valid employee decertification petition, rival union raid attempt, employer petition or other valid challenge to majority status.
UGL-UNICCO reestablishes the "successor bar" and defines what is a "reasonable time" for the successor and incumbent union to negotiate. Stewart added: "Interestingly, the 'bar' is only six months if the successor adopts the terms and conditions of the existing contract as a starting point. If the successor exercises its rights established by the U.S. Supreme Court in NLRB v. Burns International Security Services to establish its own terms and conditions of employment, the period extends to six months to a year. In other words, the union is given more protection if the employer decides to do what the Supreme Court said it has the right to do!"
"The decision is a complete repudiation of the possible desires of the unionized employees to rid themselves of the union or select another union, in favor of keeping an incumbent union in place. It is an ideological, policy decision."
These decisions and more will be discussed in further detail at this year's Not Your Father's NLRB seminar, which will be held on October 27 and 28 at the InterContinental New Orleans. Attendees will receive information from Washington "insiders" and experienced practitioners about the latest NLRB initiatives, decisions and directions. To attend, click here or call 866-964-6303. Should you have any questions about these decisions, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at firstname.lastname@example.org.
Hera S. Arsen, J.D., Ph.D., is Managing Editor of the firm's publications, overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the...