Cherry Picking Supporters and Unionizing Them – The New World of Micro-Units

Written by Robert G. Brody and Abby M. Warren on October 25, 2013

The Sixth Circuit Court recently held in Kindred Nursing Centers East, LLC v. NLRB that the National Labor Relations Board (“Board”) did not abuse its discretion in Specialty Healthcare, a decision allowing  the creation of “micro-bargaining units” e.g., small groups of employees, in non-acute healthcare facilities.

The Court reviewed the Board’s determination that 53 certified nursing assistants (“CNA”) was an appropriate bargaining unit at a nursing home despite the employer arguing 33 additional service and maintenance employees should be included.  The Court believed it was bound to uphold the bargaining unit determination unless it found the decision was arbitrary, unreasonable, or an abuse of discretion.  The Court explained that deference to the Board’s determination is almost absolute regarding bargaining unit determinations.

In Specialty Healthcare, the Board broke from two decades of precedent concerning bargaining unit determinations for non-acute healthcare facilities such as nursing homes and rehabilitation centers.  Since 1991, employers have relied on Park Manor which set forth a practical test for determining whether employees excluded from the unit should be included.  Under that test, the Board considered traditional community of interest factors as well as the structure and organization of work performed at the facility.  The Board also used its knowledge of the industry.  These determinations usually resulted in eight bargaining units in non-acute healthcare facilities.  CNAs would typically fit in a bargaining unit with service and maintenance employees which is why the employer is Specialty Healthcare sought to include 33 such employees.

The Board changed 20 years of practical wisdom in deciding Specialty Healthcare and held the employer must show excluded employees share an “overwhelming community of interest” with the included employees.  It also has removed the practical considerations the Board has always used in making these determinations.  This new standard will make it much harder for employers in this industry to predict which employees will be in or out of the bargaining unit.

Even though Specialty Healthcare involved a nursing home, employers in all industries should take note of this decision because it opens the door to unionizing small groups of employees.  As a practical matter, when unions are having difficulty unionizing a workplace, they can cherry pick a small group of their supporters and unionize that subset first.  With these inroads, the union can than turn to the majority of the employees.  To combat this, employers should focus on good employee relations across the board, so no small pocket of employees can lead to unionization of the entire operation.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Legal Updates, News, NLRB

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More