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The Labor & Employment Report

Specialty Healthcare Watch

Posted in Labor Law & NLRB, Unions

In August, the NLRB issued perhaps its most important decision of 2011  in Specialty Healthcare, 357 NLRB No. 83 (2011).   Perhaps the most critical part of any union election is the bargaining unit determination–that is the group of workers who will vote on whether or not to join the union.  To draw an analogy to the current presidential race, if voting was limited to only California and New York — President Obama would be assured a landslide, no matter what happens between now and November.   Traditionally, in a union election, both management and organized labor have fought spirited battles over bargaining units, with both sides trying to obtain bargaining units that look like “California and New York” for their respective sides.

Previously, the Board used a “community of interest” test to determine if workers belonged in the same bargaining unit.  This test looked at a variety of different variables such as pay, job function, supervisors, etc.   The union  must always first petition for a unit, but the final unit was not necessarily what the union wanted.

Specialty Healthcare changed the ballgame.    In that case, a union was attempting to organize a group of Certified Nursing Assistants (CNAs) only.  Usually, CNAs were included in other groupings.  The Board articulated a new rule that a bargaining  unit is appropriate so long as the employees constitute a readily identifible group and share a community of interest.  If the employees could be placed in a larger unit which would also be appropriate or even more appropriate, the burden rests on the employer to demonstrate that these employees share an “overwhelming community of interest.”   The takeaway from the case was that unions could now organize smaller groups of employees, a strategic advantage since smaller groups of employees are more likely to vote in favor of unions and give unions a foothold in a company.

But what does an “overwhelming community of interest” mean?  In August, nobody knew.   It was a legal standard with no substance.   The only way to discern what constitutes an “overwhelming community of interest” is to analyze how the Board has applied that standard in subsequent cases.

In order to give employers guidance on that issue, this blog will start a semi-regular feature called “Specialty Healthcare Watch” — that is, when a new board case comes out applying this “overwhelming community of interest” standard, this blog will quickly analyze the case and give you pointers on what factors the Board considered in making the determination.

The first issue of Specialty Healthcare Watch will be published tomorrow.