Smaller Employment Units Can Be Separate Bargaining Units

Charles W. Miller & Associates

A Sixth Circuit Court of Appeals decision represents a victory for employees looking to unionize in Kentucky and other states in its jurisdiction. In Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB, the Sixth Circuit upheld a National Labor Relations Board decision allowing unions to organize in small units of employees. This is significant because if individual units of employees can be recognized as unionized, it will be easier to unionize a workplace than if all employees were required to vote.

Kindred Nursing Centers East, LLC operated a nursing home in Mobile, Alabama, which had no history of employee collective bargaining. The employees worked in eight separate departments, including nursing, nutritional services, resident activity, administration medical records, maintenance, central supply, and social services. In the nursing department were 53 Certified Nursing Assistants (CNAs), as well as Registered Nurses (RNs) and Licensed Practical Nurses (LPNs).

After the CNAs sought representation by unions as an individual collective bargaining unit, Kindred sought to include 86 other non-professional service and maintenance employees. The nursing home’s argument was that the collective bargaining unit ought to be organized along certain similar lines, such as requiring the same amount of education, the same hiring process, and the same evaluation process. However, the NLRB’s Region 15 found that the CNAs constituted a sufficient bargaining unit all their own. Region 15 held elections and the CNAs voted for unionization. Kindred then appealed to the NLRB.

The NLRB ruled against Kindred, applying the “community of interest” standard and finding that requests for representation from smaller employment units would be approved unless the employer could show that the employees to be excluded had an “extraordinary community of interest” with the covered employees. Kindred refused to bargain and the Sixth Circuit had jurisdiction over the matter, despite it occurring outside of the Sixth Circuit, due to a “quirk” in the law that allows the Circuit Court of the home state of the aggrieved individual or business to hear the case. Kindred’s corporate headquarters are in Kentucky.

The Sixth Circuit affirmed the NLRB’s decision, finding that its application of “extraordinary community of interest” did not represent an abuse of discretion; that this new standard was not a material change in the law because it had already been applied in a small number of cases; and that the National Labor Relations Act prohibits the NLRB from determining the size of a bargaining unit based on the extent a union is successful at organizing.

Employers voiced concerns that the Sixth Circuit decision means that there could be several different unions in the workplace, making it difficult for the employer to satisfy all of them. On the other hand, the ruling is also an opportunity for employees, removing a barrier to their organization. Employees who are unionized are more likely to receive better wages and hours than non-unionized employees. Furthermore, employees in smaller collective bargaining units will likely have an easier time getting their needs met than employees in larger, broader-based units. In the meantime, employees in Kentucky who experience a violation of their rights should contact a Kentucky labor law attorney as soon as possible.

Charles W. Miller & Associates is a plaintiffs’ law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. Contact us today for a free consultation.

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