What a difference a few months can make.  Last December, in Specialty Healtcare and Rehabilitation of Mobile the NLRB invited interested parties to file briefs to consider a number of questions about whether it should consider adopting a new "one size fits all" rule for bargaining units in nursing homes (called "nonacute care" facilities).  The case is of critical importance to all employers falling under jurisdiction of the NLRA, however, because it could be a sign of a shift to ignore traditional "community of interest factors" in favor of rules which presume a unit is appropriate based solely on "employees performing a job" or a unit "proposed by the union."  For over 75 years, Section 9(b) of the NLRA has mandated that the NLRB "decide in each case whether, in order to assure employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for collective bargaining shall be the employer unit, the craft unit, plant unit, or subdivision thereof. . ."  Section 9(c)(5) prohibits the NLRB from giving controlling weight to the extent to which employees have been organized.  For years these provisions meant the NLRB carefully considered whether a unit was "appropriate" for purposes of collective bargaining by, among other things, analyzing  how the employer has organized its business, how employees interact with one another and other factors to determine whether a unit is in fact appropriate.

The NLRB's consideration of a presumptive rule is based on Member Becker's failed attempt in Wheeling Island Gaming, 355 NLRB No. 127 (August 27, 2010).pdf to adopt as appropriate a unit of "poker dealers."  Member Becker stated in his dissent, "From the perspective of the employees, this is one of the most logical and appropriate units within which to organize. . ."

Not so fast.  It seems clear a rule based on "employees performing a job" or on a "proposed unit" (meaning the group sought by the union in its petition) violate the NLRB's mandate.  We filed our Brief of Amicus Curiae Retail Industry Leaders Association.pdf detailing the legislative history history and relevant case law demonstrating that such presumptive rules under consideration are contrary to the Act.  We think it is clear Congress intended the NLRB to consider how an employer has organized its business, and not allow bargaining based on a multitude of smaller units.  One can imagine that the rules under consideration could mean employers would be faced with dozens of potential bargaining units, each with conflicting interests and demands

Responsive briefs are due March 22.  After that, we will see what whether the NLRB will follow the Act's mandates or not.

We will, of course, keep you posted.