Tag: Specialty Healthcare

Continuing the Fight Against NLRB’s Specialty Healthcare Decision

In keeping up the fight against the NLRB’s Specialty Healthcare decision, the NAM joined onto yet another amicus brief yesterday. The latest brief, is regarding the Nestle Dryer Ice Cream Company case, which challenges the formation of a smaller bargaining unit.

The Specialty Healthcare case, issued by the NLRB last August, changed the landscape of labor law and overturned over seven decades of precedent allowing for the formation of several smaller bargaining units, or “micro unions” in any one facility. We have already seen several Board decisions in different business sectors citing Specialty Healthcare as a basis for smaller bargaining units; first, in the Bergdorf Goodman case out of New York, where the women’s shoe department is permitted to be its own bargaining unit separate and apart from any other sales associate departments of the store; and, now in the Nestle Dryer Ice Cream Company case. 

In Nestle Dryer Ice Cream, the maintenance employees petitioned for their own unit, but the employer requested the production employees to be included in the unit as well – as had been the circumstances of previous organizing efforts by the same union in the same facility.  The Board’s Regional Director in the case rejected the employer’s request citing the Specialty case.

In support of the employer, the amicus brief argues “[i]nexplicably and without warrant, Specialty Healthcare eliminates consideration of the context of the unit sought as it relates to the employer’s overall operations in favor of an ‘employees readily identifiable as a group’ framework that slavishly pays heed to job titles, departments or classifications, without regard to how such a unit integrates into the daily practicalities of operating the business. The result is a fracturing of the workforce and an increase in tension between employees and management.” 

While this argument seems logical and is rooted in prior Board case decisions, one can only surmise that overturning decades of established labor law and establishing a new standard to permit smaller “micro unions,” is apparently more important to the Board, than having businesses run efficiently in order to create badly needed jobs and promote a cohesive and stable workforce.  There most certainly will be more to come as cases continue to come down from Board on “micro unions.”

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Arguments Pro and Con on NLRB’s Plan to Allow ‘Micro Unions’

The National Labor Relations Board has posted the amicus briefs submitted in response to the NLRB’s review of a case that the board could use to justify a radical change in labor policy, the authorization of “micro unions.” (See our posts immediately below here and here.)

The case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9. The National Association of Manufacturers is a member of the Coalition for a Democratic Workplace, which submitted its amicus brief in alliance with the HR Policy Association.

To simplify the sides, employers and employer groups believe the NLRB is going too far in turning one specific labor dispute into a broader review of what legitimately constitutes a bargaining unit. Labor unions want a million units to bloom, allowing organizers to pick and choose small groups of employees whom they can more efficiently persuade and pressure into joining a union.

The employer’s brief: Specialty Healthcare and Rehabilitation Center of Mobile

The union’s brief: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, i.e., USW

Amicus briefs from labor unions:

Amicus briefs from employer groups:

Submitting a letter were three Republican members of the Senate Heath, Education, Labor and Pensions Comittee: Senators Mike Enzi, Orrin Hatch, Johnny Isakson (continue reading…)

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Pushing Labor’s Agenda Through the Executive Branch, the NLRB

President Obama visited a Fairfax, Va., family last September to promote his Administration’s agenda before the 2010 elections. Asked about the prospects for passing the Employee Free Choice Act, i.e., card check, the President said [our emphasis]:

Frankly, we don’t have 60 votes in the Senate. So the opportunity to actually get this passed right now is not real high. What we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.

The move (discussed below) by the National Labor Relations Board to redefine acceptable bargaining units and allow “micro unions” sure looks like the President’s plan put into action, doesn’t it? Don’t pass a law, don’t even hold a formal rule-making procedure, just solicit amicus briefs and then issue a ruling that overturns decades of precedent and rewrites labor law.

Three U.S. Senators have registered their objections to the NLRB’s attempt to circumvent the policymaking branch of government, Congress. In a March 8 letter to the board, Sens. Mike Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA) wrote:

As United States Senators and members of the Health, Education, Labor and Pensions (“HELP”) Committee, we have a vested interest in the outcome of the underlying case. When an independent government agency, acting within its discretion, creates policy that conflicts with federal statute, or attempts to circumvent the legislative or rulemaking process, Congress must weigh in to ensure constitutional boundaries are not crossed. What we have learned from various stakeholders is that the decision in Specialty Healthcare could result in changing the determination of appropriate bargaining units in every workplace under the Board’s jurisdiction. We believe such a major change should only be done by amending the statute, which is the exclusive province of Congress.

The Senators acknowledged that the board can at times change policy through adjudication, i.e., ruling on a case, and it would be appropriate to seek amicus briefs in those circumstances. However, that process should not be a substitute for formal rulemaking, they argued.

The NLRB voted 3-1 to go ahead with its review in the Specialty Healthcare case, with the three votes coming from the Democratic members: Chairman Wilma Liebman, former labor lawyer Mark Pearce, and former SEIU and AFL-CIO counsel Craig Becker, a recess appointee. In his dissent, the sole Republican on the board, Brian Hayes, delineated how the majority’s overreach in entering the policymaking realm. Indeed, neither of the two parties in the case sought the broad review the board is undertaking. Hayes concluded: (continue reading…)

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NLRB Plan Would Revive Big Labor Through ‘Micro Unions’

The National Labor Relations Board is opening the door to a new and radical reinterpretation of labor law, allowing the formation of “micro unions” that could force employers to deal with multiple bargaining units at a single workplace. If the scheme is pushed through, labor organizers could approach small groups of employees to form unions, even though the majority of workers at a job site would oppose unionization. The multiplying of bargaining units at a single business location would create enormous management problems and grant a few employees the ability to disrupt business operations through a labor action. Big Labor loves the idea.

The case, Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, involves the attempt of the Steelworkers to organize a group of certified nursing assistants at a nursing home. The employer, Specialty Healthcare, maintained that the only appropriate unit consists of all nonprofessional service and maintenance employees.

The NLRB’s Regional Director sided with the Steelworkers, finding the smaller bargaining unit acceptable, and Specialty Healthcare appealed. Rather than rule on its own, the NLRB sent out a request for amicus briefs to comment on what constitutes an appropriate bargaining unit. This unusual step strongly suggests to us that the board’s three-member Democratic majority wants to use the case to overturn precedent and allow creation of these small “micro unions.”

Not surprisingly, the apparent intellectual instigator of this exercise is Craig Becker, the radical labor theoretician and former SEIU and AFL-CIO counsel. (Becker serves on the board as a recess appointment, having failed to win Senate confirmation.) In another NLRB case, Wheeling Island Gaming, Becker argued for letting a casino’s poker dealers form their own bargaining unit, supposedly because they had separate and distinct interests from blackjack dealers and craps and roulette operators. Even his fellow Democratic board members, Chairman Wilma Liebman and former labor lawyer Mark Pearce, thought he went too far. Correction (3:20 p.m.): Chairman Wilma Liebman, a fellow Democrat, and former Republican appointee William Schaumber, disagreed. The NLRB order is here.

The Coalition for a Democratic Workplace (CDW), to which the National Association of Manufacturers, and the HR Policy Association have filed an amicus brief (download here) raising strong objections to any attempt by the NLRB to overturn longstanding precedent. From the CDW’s news release, “Activist NLRB To Hear Case On Special(ty) Interests“:

At issue in Specialty Healthcare is whether Big Labor may organize by cherry picking groups of workers that support the union without providing many co-workers who may oppose the union an opportunity to vote. Such a ruling would reverse over 50 years of standards for bargaining units. (continue reading…)

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NLRB Continues to Hear Cases That Would Radically Change Labor Law

The National Labor Relations Board continues pose many challenges to employers and employees alike with its recent actions involving several cases and proposed rulemakings. Just last week the National Association of Manufacturers submitted formal regulatory comments to the Board that question its authority to issue regulations that would require almost all employers to post or otherwise communicate a biased notice of unionization rights to their employees.

Now the Board continues to hear cases that could set troubling legal precedent and shift longstanding interpretation of labor law. One such case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, 356 NLRB No. 56 (2010). This case is important because it is “representation case”, meaning that there will be no opportunity for direct judicial review and the Board could begin applying its decision immediately in other cases.
The Board’s ruling is expected to reverse 50 years of case law by radically changing the standard for determining an appropriate bargaining unit for all of the estimated six million workplaces covered by the National Labor Relations Act. The key issue is whether employees performing the same job at a single facility presumptively constitute a bargaining unit for organizing purposes, irrespective of any commonality those employees share with other employees outside the proposed unit.

Former NLRB member and labor law expert extraordinaire Pete Kirsanow recently commented on the impact of this case in National Review Online’s The Corner blog. In his piece, Kirsanow explains how this case could ultimately skew U.S. labor law to make it much easier for labor unions to organize workplaces.

Kirsanow identifies other implications. The case could:

  • Increase the probability that a workplace will have multiple bargaining units representing different classifications of employees; e.g., one unit of, say, two set-up men, another unit of six press operators, yet another unit of three welders, a separate unit of four packers, etc. etc.
  • Increase the probability that a company’s employees will be represented by — and the company must bargain with — multiple unions, e.g., the UAW in one part of the plant, the Teamsters in another, and the SEIU in a third.
  • Increase the probability that an employer would have to manage separate work schedules, grievance procedures, wage schedules, and benefits packages for various bargaining units in a single workplace.
  • Increase the man-hours a company spends on personnel matters such as discipline, grievances, arbitration, and bargaining.
  • Reduce management’s flexibility in matters such as hiring, work assignments, transfers, promotions, layoffs, and overtime.
  • Reduce productivity and increase costs
  • The Board has historically applied a clear set of standards to determining a unit appropriate for bargaining – this case would turn those standards upside down. We hope that board will adhere to longstanding precedent when determining this case.
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