In a decision that would make it easier for certified nursing assistants to unionize, the National Labor Relations Board has voted to overturn a 1991 policy that imposed limits on how union bargaining units are defined in skilled nursing facilities.
In addition, the Board clarified the criteria used in cases where a party argues that a proposed bargaining unit is inappropriate because it excludes certain employees. The Board did not create new criteria for determining appropriate bargaining units outside of healthcare facilities.
The 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile finds that CNAs at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. It overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers and other non-acute healthcare facilities.
Where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit. That test is drawn from Board precedent and has been endorsed by the United States Court of Appeals for the District of Columbia Circuit, the decision noted.
Employers-rights organizations said the decision would encourage unions—which have made inroads in recent years in healthcare facilities—to define ever-smaller bargaining units and make it easier to organize, according to an article in Modern Healthcare.
The Assisted Living Federation of America (ALFA) expressed its dismay with the decision, saying it would compromise both employee and employer rights, lead to higher costs for seniors in a down economy and fragment services for senior living residents.
“This is a wrong decision for senior living communities, their employees and the residents they service,” said Richard Grimes, ALFA president and CEO. “Allowing organized labor to unionize these fragmented groups of employees will raise the cost of doing business, raise the rates for seniors in our care—and worse—cause divisiveness among the staff who should always remain focused on advancing quality of life for the seniors they serve.”