Labor Board Considering Change to Long-Term Care Bargaining Units to Promote Unionization

In a move seen to make union organizing easier, the National Labor Relations Board has signaled it may be changing its standards for long-term healthcare bargaining units so that narrow groups of nursing and assisted living facility employees can be approved for NLRB elections and collective bargaining. It has invited interested parties to file amicus briefs by February 22, 2011. All submissions must be e-filed at http://mynlrb.nlrb.gov/efile.

The NLRB’s announcement, approved by three of the four members, was made in a case involving a Mobile, Alabama, nursing home. The union petitioned for a unit of all Certified Nursing Assistants (CNAs). The employer argued that such a unit was too narrow and that the only appropriate unit would be one covering all nonprofessional service and maintenance employees.

While the NLRB typically requires such a broader unit, in this case, the Regional Director found the union could carve out a unit limited to CNAs. The employer appealed to the NLRB in Washington, D.C.

The Board has invited comments on eight specific questions to help it decide whether the standards for determining long-term care units should be changed to encourage “employee free choice and collective bargaining in non-acute health care facilities.”

One question is whether the NLRB should extend its acute care hospital rule to long-term care facilities. The NLRB’s 1989 “acute care rule” defined eight appropriate bargaining units in acute care hospitals. Although the Board in 1989 said it would not apply these unit rules to long-term care providers , it now wants to revisit the idea, citing the “radical transformation” (its words) of the long-term care industry in the past 20 years. It noted that long-term care employees have demonstrated a “persistent interest” in union organizing with almost 3,000 petitions filed in the last decade.

Some of the NLRB’s eight questions should raise concerns for long-term care providers. For example, one asks whether a unit comprised of a single job classification or “all employees performing the same job in a single facility” should be considered presumptively appropriate. If the Board adopted such a “rule of interpretation ,” employers could expect a proliferation of units, one for each job classification, i.e., one for CNAs, one for Activity Assistants, one for Dietary Aides, and so on. Unions would carve a facility into small, easy-to-organize voting units. A long-term care provider might have to negotiate and administer six or more labor contracts, each with a different expiration date.

No matter what the changes may be, they can be expected to result in strict interpretations that minimize unit litigation and expedite elections. That will almost assuredly mean higher union win rates.

In opposition to the Board majority’s position, Member Brian Hayes said the majority had overstepped its bounds. Its decision, he said, clearly represents broad rulemaking, without the “inconvenience” of complying with the various safeguards and review required by the Administrative Procedures Act. Hayes predicted this move is a “prelude to what will likely result in the substantial increase of units in the non-acute healthcare industry….”