NLRB has wide Discretion to Delineate Parameters of Bargaining Unit

Despite its efforts to create a larger bargaining unit comprised of allegedly similarly-situated employees, an Alabama nursing home operator recently learned the hard way about the NLRB's "wide" discretion in determining who may be included in a bargaining unit.

In this case, the nursing home operator employed numerous types of employees, from licensed nurses and certified nursing assistants (CNA), to various service and maintenance employees. The union sought to represent a unit of 53 full time and part time CNAs, but the operator argued that the unit should be expanded to include an additional 86 non-supervisory, non-professional service and maintenance employees, including cooks, records clerks, staffing coordinators, among others. The operator argued that all of these employees have similar educational requirements, and they must complete the same employment application, undergo the same hiring process, and participate in the same employee orientation. 

The Regional Director issued a Decision and Direction of Election, finding that the petitioned-for unit of full-time and part-time CNAs at the nursing home as an appropriate unit. An election was held, and the union won. The operator ultimately refused to bargain and the union filed an unfair labor practice charge. The Board found that the operator violated the National Labor Relations Act in refusing to bargain, and the operator appealed. The issue was whether the Board acted within its discretion in rendering its ruling. The Sixth Circuit Court of Appeals disagreed with the employer, finding that the Board had “wide discretion” under the Act to delineate the bargaining unit, and, under these circumstances, the application of the traditional community interest test to the unit of CNAs was appropriate.

For more information read Kindred Nursing Centers East LLC v. National Labor Relations Board, No. 12-1027 (6^th Cir., August 15, 2013).