Obama NLRB Overturns Bush-era Decisions, Protects Union Rights, Allows Nursing Home Workers to Organize

It looks like the National Labor Relations Board has decided to get in as many decisions as it can before December, when current member Craig Becker's term ends and the Board is down to two members, a level at which the Supreme Court has ruled it can't issue rulings. Republicans, of course, are vowing to block any nominees, so the Board is likely to stay at two members for the foreseeable future.

The NLRB has issued three more rulings following last week's announcement that employers would be required to notify workers of their rights under the National Labor Relations Act. Two of Tuesday's rulings overturn Bush-era NLRB rulings, both having to do with union decertifications.

The Lamons Gasket decision reestablishes a waiting period between when workers vote to join a union and when a decertification challenge to that union can occur:

For over forty years, federal law had barred challenges to a union’s representative status for a "reasonable period" following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Today’s decision in Lamons Gasket returns the Board to the law as it existed before Dana Corp.

Similarly, the Bush NLRB had ruled in 2002 that if a company came under new ownership, a preexisting union could be immediately challenged by the new owner, 30 percent of employees, or a rival union. Tuesday's UGL-UNICCO Service Company ruling reestablishes a reasonable waiting period in which the union is protected from challenge.

A third decision actually reaches back to the George H.W. Bush era, when the NLRB had created a "special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities." In the Specialty Healthcare case decided Tuesday, a nursing home owner had applied this special test, arguing that the home's Certified Nursing Assistants (CNAs) could not unionize by themselves but had to be joined by the home's cooks, dietary aides, data entry clerk and other non-CNA support staff. The NLRB overturned that special standard, and "Employees at such facilities will now be subject to the same 'community-of-interest' standard that the Board has traditionally applied at other workplaces."

Predictably, as Steven Greenhouse reports in the New York Times,

Groups representing businesses and nursing home operators attacked the decision, fearing it would make the homes more vulnerable to unionization drives.

"This ruling makes it easier for unions to gerrymander who is in a bargaining unit to help them be successful in organizing," said Michael J. Eastman, executive director of labor law policy at the United States Chamber of Commerce.

Employers, of course, have long relied on gerrymandering the bargaining unit. During representation elections, they may call for a group of workers to be included in the vote who don't work with or have much in common with the workers seeking a union—we see that here, where 53 CNAs share pay rates, schedules, qualifications and tasks, while the support staff the owner sought to have included in the election worked on a variety of schedules and tasks and had varying qualifications. Employers also gerrymander bargaining units by excluding large numbers of workers, claiming them as supervisors who aren't eligible to organize, though they may have no power to hire, fire or set policy.

In fact, there's actually a good argument that in a small workplace it would be better for the union movement for as many different types of workers as possible to share a union; in the Specialty Healthcare case, for instance, it's not clear what union the 33 service and maintenance employees could join as one unit if they did want to join a union, and splitting them up into several tiny units each belonging to a different union would have its problems. However, that's not the standard that's applied to most workplaces, and the Board decided that nursing homes should be held to that more general standard.