Case 20 3 Specialty Healthcare Rehabilitation Center Mobile United Steelworkers District 9 Q30581219

Case 20–3 Specialty Healthcare and Rehabilitation Center ofMobile and United Steelworkers, District 9, Petitioner NationalLabor Relations Board Case 15–RC–8773 (August 26, 2011)* TheEmployer operates a nursing home and rehabilitation center inMobile, Alabama, with no history of collective bargaining. ThePetitioner sought to represent a unit of 53 CNAs, who must becertified by the State of Alabama. The certification requires thatan individual complete 16 hours of classroom training and 72 hoursof general education. The certification course includes the basiccomponents of caring for geriatric and incapacitated patients, suchas bathing, dressing, and feeding. CNAs are required to attendspecialized training on a periodic basis to maintain theircertification. The Employer believed that the only appropriate unitconsists of its approximately 86 nonsupervisory, nonprofessionalservice and maintenance employees such as cooks, supply clerks anddata entry clerks, along with the CNAs. CNAs[’] wages all start at$8.50 an hour, whereas all the other employees the employer wantedto group with them had starting wages ranging from $7 to $10 perhour. The Regional Director found that a petitioned-for bargainingunit of certified nursing assistants (CNAs) was appropriate under atraditional community-of- interest analysis. The Employer, however,contended that the only appropriate unit containing the CNAsconsists of the CNAs plus all other nonprofessional service andmaintenance employees at its facility. The employer requested areview of the decision. The employer argued that because CNAs inacute care facilities were included in bargaining units with allnonprofessional and maintenance employees, they should be similarlygrouped in nursing homes. Chairman Liebman and Members Becker,Pearce, and Hayes . . . For our purposes here, the critical factabout the Board’s acute care hospital unit rule is that by itsexpress terms it does not apply to this case or to nursing homesgenerally, and no party contends otherwise. . . . The rule alsoexpressly provides that “[t]he Board will determine appropriateunits in other health care facilities . . . by adjudication.” . . .[W]e have decided to overrule Park Manor and to apply ourtraditional community of interest standards in this case and otherslike it. . . . The traditional community-of-interest test isintended, as the Act requires, to assure employees the “fullestfreedom in exercising the rights guaranteed by th[e] Act,” ratherthan to satisfy an abstract notion of the most appropriate unit,and is thus pragmatic. In addition, it has always been informed byempirical knowledge acquired by the Board about the industry andworkplace at issue. Our determination of whether a proposed unit isan appropriate unit must be guided by the principles of unitdetermination drawn from the language of the statute . . . Theexisting presumptions are thus consistent with the statutoryrequirement that the proposed unit need only be an appropriateunit. As the Supreme Court has recognized, Section 9(a), “read inlight of the policy of the Act, implies that the initiative inselecting an appropriate unit resides with the employees.” . . .The Board has construed that statutory first step in therepresentation case process to permit the petitioner to describethe unit within which “a substantial number of employees . . . wishto be represented.” Procedurally, the Board examines thepetitioned-for unit first. If that unit is an appropriate unit, theBoard proceeds no further. As the Board recently explained, “theBoard looks first to the unit sought by the petitioner, and if itis an appropriate unit, the Board’s inquiry ends.” Here, of course,the employees have proposed a unit consisting of a set of employeeswho are clearly identifiable as a group: all employees in the CNAclassification. The Act further declares in Section 9(b) that“[t]he Board shall decide in each case whether, in order to assureto employees the fullest freedom in exercising the rightsguaranteed by this Act, the unit appropriate for the purposes ofcollective bargaining shall be the employer unit, craft unit, plantunit, or subdivision thereof.” . . . The Board has historicallyhonored this statutory command by holding that the petitioner’sdesire concerning the unit “is always a relevant consideration.” .. . We thus consider the employees’ wishes, as expressed in thepetition, a factor, although not a determinative factor here. Weproceed, then, to determine if the employees’ proposed unitconsisting of all CNAs is “a unit” appropriate for the purposes ofcollective bargaining under Section 9(a). . . . Again, the SupremeCourt has recognized that the language of Section 9(a) “suggeststhat employees may seek to organize ‘a unit’ that is‘appropriate’—not necessarily the single most appropriate unit.” Inmaking the determination of whether the proposed unit is anappropriate unit, the Board’s “focus is on whether the employeesshare a ‘community of interest.’” . . . In determining whetheremployees in a proposed unit share a community of interest, theBoard examines: [W]hether the employees are organized into aseparate department; have distinct skills and training; havedistinct job functions and perform distinct work, including inquiryinto 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 otheremployees; have distinct terms and conditions of employment; andare separately supervised. Here, employees in the proposed unitclearly (and undisputedly) share a community of interest. TheRegional Director so concluded based on the CNAs’ “[d]istincttraining, certification, supervision, uniforms, pay rates, workassignments, shifts, and work areas.” The CNAs, of course, alloccupy the same job classification. The CNAs in the Employer’snursing department are unlike all the other employees the Employerwould include in the unit. Thus, they wear distinctive nursinguniforms unlike all the other employees, most of whom wear nouniform at all. Because they are in the nursing department, theCNAs’ immediate and intermediate supervision (by LPNs and RNs) isseparate and distinct from all other employees. The primary duty ofthe CNAs, unlike all the other employees, is the direct, hands-oncare of facility residents. As a consequence, CNAs at this facilityand nationwide experience unique risks and are subject to uniquerequirements. Only CNAs are routinely exposed to blood and otherbodily fluids. Only CNAs routinely perform the physically demandingtasks of assisting residents with repositioning and ambulation.There is no evidence of significant functional interchange oroverlapping job duties. Finally, the Regional Director correctlyfound “no evidence” of transfers into the CNA position from theother job classifications and only one such transfer out of the CNAposition. Applying traditional community of interest factors tothese facts, we have little difficulty in concluding that thepetitioned-for unit is an appropriate unit. . . . Because aproposed unit need only be an appropriate unit and need not be theonly or the most appropriate unit, it follows inescapably thatdemonstrating that another unit containing the employees in theproposed unit plus others is appropriate, or even that it is moreappropriate, is not sufficient to demonstrate that the proposedunit is inappropriate. . . . “[I]t is not enough for the employerto suggest a more appropriate unit; it must ‘show that the Board’sunit is clearly inappropriate.’” . . . The fact that a proposedunit is small is not alone a relevant consideration, much less asufficient ground for finding a unit in which employees share acommunity of interest nevertheless inappropriate. A cohesiveunit—one relatively free of conflicts of interest—serves the Act’spurpose of effective collective bargaining, and prevents a minorityinterest group from being submerged in an overly large unit. . . .We therefore take this opportunity to make clear that, whenemployees or a labor organization petition for an election in aunit of employees who are readily identifiable as a group (based onjob classifications, departments, functions, work locations,skills, or similar factors), and the Board finds that the employeesin the group share a community of interest after considering thetraditional criteria, the Board will find the petitioned-for unitto be an appropriate unit, despite a contention that employees inthe unit could be placed in a larger unit which would also beappropriate or even more appropriate, unless the party socontending demonstrates that employees in the larger unit share anoverwhelming community of interest with those in the petitioned-forunit. We set out a clear test—using a formulation drawn from Boardprecedent and endorsed by the District of Columbia Circuit—forthose cases in which an employer contends that a proposedbargaining unit is inappropriate because it excludes certainemployees. In such cases, the employer must show that the excludedemployees share an “overwhelming community of interest” with thepetitioned-for employees.* Affirmed, in favor of the PetitioningEmployees. The appropriateness of the proposed bargaining unit isthe first issue that the staff of the regional office determineswhen it receives a petition for a representation election. Oncethat issue has been resolved, employer and union representativestry to reach an agreement on such matters as the time and place ofthe election, standards for eligibility to vote, rules of conductduring the election, and the means for handling challenges to theoutcome of the election. If the parties cannot reach an agreement,the NLRB regional director determines these matters and orders anelection. If the union obtains signed authorization cards from morethan 50 percent of the appropriate employee unit, it may ask theemployer to recognize the union on the basis of this showing ofmajority support alone. Realizing that it is futile to try toprevent the union from representing its employees, the employer maydecide that it would ultimately be beneficial to recognize theunion and begin the bargaining process on an amicable note. Suchbehavior is risky, however, because it may constitute a violationof Section 8(a)(1), which prohibits employers from interfering withemployees’ Section 7 right of free choice. In other cases, theemployer 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 aboard-run election to ensure that there indeed is majority supportprotects the employer. If a union receives a majority of the votesand the election results are not challenged, the board will certifythe union as the exclusive bargaining representative of theemployees of that unit. If two or more unions are seeking torepresent employees and neither of the unions or “no union”receives a majority of the votes, there will be a runoff electionbetween the choices that got the greatest and second-greatestnumber of votes. Once a valid representation election has been heldand there has been either a certification of a representative unionor a majority vote for no union, there cannot be another electionfor one year. Nor can there be an election during the term of acollective bargaining agreement, unless either the union is defunctor there is such a division in the ranks of the union that it isunable or unwilling to represent the employees.

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1.Identify the plaintiff and the defendant

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3. Who brought the appeal? What was the outcome in the lowercourt(s)?

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