As previously discussed, the impending departure of Chairman Liebman, as well as the coming of the end of the NLRB’s fiscal year, made it highly likely we would see some significant decisions issued by the agency.  Chairman Liebman departed after fourteen years on Saturday, but not before having one last word about her critics.  The New York Times’ Steven Greenhouse captured perfectly a major issue with labor relations today: that both sides often seem to be talking about different things.

Also before her departure, Chairman Liebman was able to get to a few of the more hotly debated issues.  The NLRB issued today a truly remarkable decision which likely will have an impact on all industries, not just in non-acute healthcare where the decision began.

In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf the Board introduced a sweeping change to unit determinations.  This is the case we discussed in the past where the Board gave strong indications it was going to adopt a presumptive standard if the petitioned for unit is based on “readily identifiable” groupings like all employees carrying the same job title or classification.  Unions often focus on just one set of employees holding a certain title or classification, with little or no regard to how the employees fit in a particular workplace.

Given the questions asked by the Board in its solicitation of briefs, it was believed any rule issued would apply only to the non-acute healthcare industry.  The Board, however, decided to go much farther and issue a new rule applicable to all industries.

In its decision the Board made sweeping changes to current law.  First, it overruled Park Manor Care Center, 305 NLRB 872 (1991) which set forth the standard to be applied for determining the unit in non-acute healthcare facilities, such as nursing homes.

Second, the Board articulated a new standard (even though it asserts it is not new) for deciding cases where the employer asserts that the smallest appropriate unit should be larger than the unit petitioned for by the union:

in cases in which a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.

This rule does indeed represent a major change in the law of determining representation units.

This standard gives presumptive weight to the petitioned-for unit.   Section 9(c)(5) of the Act states that the “extent of organizing” may not be given controlling weight by the Board, yet this appears to be exactly what happened.  The “readily identifiable” language clearly refers to a job title or a classification, which in many cases will mean that the petitioned for unit is going to be assumed to be correct.  This is exactly what Member Becker (who not surprisingly joined in the majority) said should be the rule in his dissent in Wheeling Island Gaming, Inc., 355 NLRB No. 127 (April 27, 2010).pdf where he stated, “The petitioned-for unit contains all the employees who do the same job at the same location.  From the perspective of employees, this is one of the most logical and appropriate units within which to organize for the purpose of engaging in collective bargaining.”  It appears Member Becker had his wish granted to give additional weight to the union’s desires in unit determinations.

It is now much more likely for an employer to have multiple bargaining units, which can be disruptive to the business.  For instance, if an employer has employees working under twelve different job titles in a workplace there is a possibility of twelve different bargaining units being formed.  Imagine twelve sets of bargaining and twelve points of contact for employee representation.

Unless, of course, the employer rebuts this presumption.  The Board also addressed the proof in this standard.  This new standard heightens the burden on the employer to demonstrate that the petitioned-for unit is inappropriate by demonstrating an “overwhelming community of interest.”  This is undeniably a higher standard of proof, and unfortunately the Board does not give us any guidance as to what constitutes “overwhelming.”

Member Hayes, of course, dissented:

Make no mistake.  Today’s decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.  My colleagues’ opinion stunningly sweeps far more broadly even than suggested by the questions posed in the notice and invitation to file briefs to which I previously dissented.

The new standard may have the unintended consequence of prolonging representation hearings as employers will now want to make extra certain they can establish “overwhelming” community of interest, whatever that means.


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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.