Reference no: EM132201335

Case 20–3 Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Petitioner National Labor Relations Board Case 15–RC–8773 (August 26, 2011)* The Employer operates a nursing home and rehabilitation center in Mobile, Alabama, with no history of collective bargaining. The Petitioner sought to represent a unit of 53 CNAs, who must be certified by the State of Alabama. The certification requires that an individual complete 16 hours of classroom training and 72 hours of general education. The certification course includes the basic components of caring for geriatric and incapacitated patients, such as bathing, dressing, and feeding. CNAs are required to attend specialized training on a periodic basis to maintain their certification. The Employer believed that the only appropriate unit consists of its approximately 86 nonsupervisory, nonprofessional service and maintenance employees such as cooks, supply clerks and data entry clerks, along with the CNAs. CNAs[’] wages all start at $8.50 an hour, whereas all the other employees the employer wanted to group with them had starting wages ranging from $7 to $10 per hour. The Regional Director found that a petitioned-for bargaining unit of certified nursing assistants (CNAs) was appropriate under a traditional community-of- interest analysis. The Employer, however, contended that the only appropriate unit containing the CNAs consists of the CNAs plus all other nonprofessional service and maintenance employees at its facility. The employer requested a review of the decision. The employer argued that because CNAs in acute care facilities were included in bargaining units with all nonprofessional and maintenance employees, they should be similarly grouped in nursing homes. Chairman Liebman and Members Becker, Pearce, and Hayes . . . For our purposes here, the critical fact about the Board’s acute care hospital unit rule is that by its express terms it does not apply to this case or to nursing homes generally, and no party contends otherwise. . . . The rule also expressly provides that “[t]he Board will determine appropriate units in other health care facilities . . . by adjudication.” . . . [W]e have decided to overrule Park Manor and to apply our traditional community of interest standards in this case and others like it. . . . The traditional community-of-interest test is intended, as the Act requires, to assure employees the “fullest freedom in exercising the rights guaranteed by th[e] Act,” rather than to satisfy an abstract notion of the most appropriate unit, and is thus pragmatic. In addition, it has always been informed by empirical knowledge acquired by the Board about the industry and workplace at issue. Our determination of whether a proposed unit is an appropriate unit must be guided by the principles of unit determination drawn from the language of the statute . . . The existing presumptions are thus consistent with the statutory requirement that the proposed unit need only be an appropriate unit. As the Supreme Court has recognized, Section 9(a), “read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees.” . . . The Board has construed that statutory first step in the representation case process to permit the petitioner to describe the unit within which “a substantial number of employees . . . wish to be represented.” Procedurally, the Board examines the petitioned-for unit first. If that unit is an appropriate unit, the Board proceeds no further. As the Board recently explained, “the Board looks first to the unit sought by the petitioner, and if it is an appropriate unit, the Board’s inquiry ends.” Here, of course, the employees have proposed a unit consisting of a set of employees who are clearly identifiable as a group: all employees in the CNA classification. The Act further declares in Section 9(b) that “[t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” . . . The Board has historically honored this statutory command by holding that the petitioner’s desire concerning the unit “is always a relevant consideration.” . . . We thus consider the employees’ wishes, as expressed in the petition, a factor, although not a determinative factor here. We proceed, then, to determine if the employees’ proposed unit consisting of all CNAs is “a unit” appropriate for the purposes of collective bargaining under Section 9(a). . . . Again, the Supreme Court has recognized that the language of Section 9(a) “suggests that employees may seek to organize ‘a unit’ that is ‘appropriate’—not necessarily the single most appropriate unit.” In making the determination of whether the proposed unit is an appropriate unit, the Board’s “focus is on whether the employees share a ‘community of interest.’” . . . In determining whether employees in a proposed unit share a community of interest, the Board examines: [W]hether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised. Here, employees in the proposed unit clearly (and undisputedly) share a community of interest. The Regional Director so concluded based on the CNAs’ “[d]istinct training, certification, supervision, uniforms, pay rates, work assignments, shifts, and work areas.” The CNAs, of course, all occupy the same job classification. The CNAs in the Employer’s nursing department are unlike all the other employees the Employer would include in the unit. Thus, they wear distinctive nursing uniforms unlike all the other employees, most of whom wear no uniform at all. Because they are in the nursing department, the CNAs’ immediate and intermediate supervision (by LPNs and RNs) is separate and distinct from all other employees. The primary duty of the CNAs, unlike all the other employees, is the direct, hands-on care of facility residents. As a consequence, CNAs at this facility and nationwide experience unique risks and are subject to unique requirements. Only CNAs are routinely exposed to blood and other bodily fluids. Only CNAs routinely perform the physically demanding tasks of assisting residents with repositioning and ambulation. There is no evidence of significant functional interchange or overlapping job duties. Finally, the Regional Director correctly found “no evidence” of transfers into the CNA position from the other job classifications and only one such transfer out of the CNA position. Applying traditional community of interest factors to these facts, we have little difficulty in concluding that the petitioned-for unit is an appropriate unit. . . . Because a proposed unit need only be an appropriate unit and need not be the only or the most appropriate unit, it follows inescapably that demonstrating that another unit containing the employees in the proposed unit plus others is appropriate, or even that it is more appropriate, is not sufficient to demonstrate that the proposed unit is inappropriate. . . . “[I]t is not enough for the employer to suggest a more appropriate unit; it must ‘show that the Board’s unit is clearly inappropriate.’” . . . The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate. A cohesive unit—one relatively free of conflicts of interest—serves the Act’s purpose of effective collective bargaining, and prevents a minority interest group from being submerged in an overly large unit. . . . We therefore take this opportunity to make clear that, when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit. We set out a clear test—using a formulation drawn from Board precedent and endorsed by the District of Columbia Circuit—for those cases in which an employer contends that a proposed bargaining unit is inappropriate because it excludes certain employees. In such cases, the employer must show that the excluded employees share an “overwhelming community of interest” with the petitioned-for employees.* Affirmed, in favor of the Petitioning Employees. The appropriateness of the proposed bargaining unit is the first issue that the staff of the regional office determines when it receives a petition for a representation election. Once that issue has been resolved, employer and union representatives try to reach an agreement on such matters as the time and place of the election, standards for eligibility to vote, rules of conduct during the election, and the means for handling challenges to the outcome of the election. If the parties cannot reach an agreement, the NLRB regional director determines these matters and orders an election. If the union obtains signed authorization cards from more than 50 percent of the appropriate employee unit, it may ask the employer to recognize the union on the basis of this showing of majority support alone. Realizing that it is futile to try to prevent the union from representing its employees, the employer may decide that it would ultimately be beneficial to recognize the union and begin the bargaining process on an amicable note. Such behavior is risky, however, because it may constitute a violation of Section 8(a)(1), which prohibits employers from interfering with employees’ Section 7 right of free choice. In other cases, the employer may wish to avoid the risk of violating Section 8(a)(2), which prohibits employer-dominated unions and may, therefore, request that the union file a petition for certification. Having a board-run election to ensure that there indeed is majority support protects the employer. If a union receives a majority of the votes and the election results are not challenged, the board will certify the union as the exclusive bargaining representative of the employees of that unit. If two or more unions are seeking to represent employees and neither of the unions or “no union” receives a majority of the votes, there will be a runoff election between the choices that got the greatest and second-greatest number of votes. Once a valid representation election has been held and there has been either a certification of a representative union or a majority vote for no union, there cannot be another election for one year. Nor can there be an election during the term of a collective bargaining agreement, unless either the union is defunct or there is such a division in the ranks of the union that it is unable or unwilling to represent the employees.

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1. Identify the plaintiff and the defendant

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