When it comes to the NLRB, Republicans in Congress are long on outrage and short on facts. In 2011, the NLRB issued a decision in Specialty Healthcare and Rehabilitation Center of Mobile that clarified the standard for when the Board will find that a petitioned-for unit of workers must also include an additional group of workers. Business lobbyists and their Republican accomplices quickly accused the NLRB of creating a new standard that authorized “micro-units.” Last week, the Fifth Circuit joined the Fourth, Sixth, and Eighth Circuits in holding that, in fact, “in Specialty Healthcare the Board clarified — rather than overhauled – its unit-determination analysis.”
The National Labor Relations Act provides for bargaining in “appropriate” bargaining units, but it does not define what makes a unit appropriate. The result is that in almost every case, before workers can exercise their right to bargain, they first must litigate whether their proposed unit is “appropriate.” The Board has acknowledged that there may be more than one appropriate unit, and the workers need not petition for the most appropriate unit. The Board finds that a unit is appropriate where the workers share a “community of interest.” In making this inquiry, the Board considers whether the workers are organized into a separate department, whether they have distinct job functions, skills, and training, whether they interchange with other workers, whether they have frequent contact with other workers, whether they have distinct terms and conditions of employment, and whether they are separately supervised.
In Specialty Healthcare, the union petitioned for an election to represent 53 certified nursing assistants (CNAs) at a nursing home. The employer argued that the bargaining unit should also include an additional 33 workers who worked in the kitchen, who performed housekeeping services, who maintained medical records, who prepared work schedules and who worked as activity aides. The Board recognized that in previous cases addressing whether a petitioned-for unit was too small, it had “sometimes used different words to describe [the] standard and [had] sometimes decided cases such as this without articulating any clear standard.” To address the uncertainty caused by the previous decisions, the Board explained that it would use a test approved by (a panel of three Republican appointees on) the D.C. Circuit, finding that “the proponent of the larger unit must demonstrate that employees in the more encompassing unit share an overwhelming community of interest such that there is no legitimate basis upon which to exclude certain employees from it.”
When the Board issued its Specialty Healthcare decision, the business lobbyists immediately turned on their outrage machine, and the Republicans in Congress began issuing press releases, holding hearings, and drafting legislation to overturn the decision. A 2012 press release by the House Education and Workforce Committee described Specialty Healthcare as “job-destroying,” and claimed that the NLRB was “discard[ing] long-standing labor policy in order to impose sweeping changes on America’s workplaces.” A year later, the committee issued another press release, accusing the Board of “abandon[ing] decades of commonsense labor policies,” and enacting a policy that “creates division and discord in workplaces” and leaves employers “buried in union red tape.” In December 2015, John Kline, the Education and Workforce Committee chairman issued another press release criticizing the NLRB for approving a unit of 164 skilled tradespeople at a Volkswagen plant in Tennessee. Never mind that skilled trades workers have organized into separate bargaining units since the earliest days of the Act, and the Act expressly authorizes units of workers in an individual craft. Kline declared that the Board has imposed a “new standard” that would have “dramatic consequences in the real world.”
Years ago, Gilda Radner had a recurring character on Saturday Night Live named Emily Litella who would rant about an issue, then learn she misunderstood the issue, and end by saying “never mind.” Now that four separate circuit courts have explained that Specialty Healthcare is not a departure from precedent, perhaps it’s time for the Republicans in Congress to say “never mind.”