NLRB Skirts Formal Rulemaking Requirements
Peter C. Schaumber
April 18, 2011
The National Labor Relations Board (NLRB) may be on the brink of making a major change in national labor policy without resorting to the basic strictures of the Administrative Procedures Act (APA), which requires federal agencies to adhere to certain standards when issuing new regulations, including conducting cost benefit assessments and providing the public notice and a full and fair opportunity to comment.
Specifically, the Board has announced its intent to reconsider the standards that have governed for decades what constitutes an appropriate unit for purposes of union representation and collective bargaining. The Board, over a strident dissent by the lone Republican member, has done so in the context of adjudicating a single case, one in which no party requested such a sweeping review of existing law. The Board’s actions are questionable both as a matter of substantive policy and administrative procedure, and smack of an effort to achieve through agency fiat radical statutory changes Congress has declined to enact.
The case at issue, Specialty Healthcare and Rehabilitation Center of Mobile, arises in the health care industry. That industry was singled out by Congress and the Board for specialized treatment due to the unique needs and considerations applicable to medical facilities. In particular, Congress directed the Board to give due consideration to preventing the proliferation of bargaining units within such facilities, and the Board itself recognized during its healthcare rulemaking proceedings in the late 1980s that “large-scale splintering of the [healthcare] work-force” was inconsistent with sound public policy. Though the Board’s healthcare rule did not in its final form extend to nursing homes and other non-acute care facilities, the Board has, for more than 20 years, applied a unit determination standard to nursing homes that considers a number of factors, including those deemed relevant in the acute care rulemaking.
Indeed, in formulating the standard applicable to nursing homes, the Board specifically noted its earlier findings during the rulemaking process concerning the greater functional integration within nursing homes, suggesting that smaller, fragmented units of employees would be less likely to be found appropriate in such facilities. For more than two decades, the Board has adhered to that measured approach, generally declining to splinter sub-groups of nonprofessional nursing home employees into separate sub-units.
Why is the determination of the appropriate unit significant? Generally, smaller units are favored by unions because they are easier and less expensive to organize; union agents can target small subsets of disgruntled employees within a broader workforce. Once a foothold is gained, union agents enjoy broader access rights and can seek to make incremental gains among other segments of employees, with the ultimate objective of securing representation of the entire facility, albeit in separate units. But a proliferation of small units fragments the workplace and has substantial negative consequences on the employer, the long-term interests of employees, and the collective bargaining process.
A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. Even if agreements can be reached, fragmented units can create lasting legal and administrative costs in applying different agreements and working conditions to a slew of small groups of employees scattered around the workplace. Unit fragmentation also undermines the perceived legitimacy and bargaining strength of unions by severely restricting the size of their constituency relative to the overall workforce. These deleterious affects obviously take on heightened significance in the context of medical facilities, where heightened costs of care and the disruption of operations pose serious risks to public health.
That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit. However, the Board has now signaled a sharp change in direction, one which may impact unit determinations, not just in nursing homes and other non-acute care facilities, but in all industries. The Board in the Specialty Healthcare case recently invited briefs on whether it should abandon decades of precedent and adopt a new rule that would approve units of two or more employees doing the “same job” in the “same location,” without regard to whether those employees comprise a distinct and homogenous group with interests separate from other employees. Under such a new standard, a unit consisting solely of maintenance employees working on the second floor of a nursing home or nursing assistants but not other care givers presumably would be appropriate. As would a unit consisting solely of the trumpet players in an orchestra or wide receivers on a football team, regardless of the sentiments of the other workers with whom they share common interests.
Apart from the sweeping nature of the change, the legal process the Board chose to try to implement it is reminiscent of a similar power play at the National Mediation Board (NMB), where the Democratic appointees jettisoned decades of precedent, without meaningful public comment and deliberation -- or even involvement of the lone Republican member -- to do away with the fundamental requirement that a majority of eligible voters in a unit cast ballots in favor of a union in order to be certified as the bargaining representative. In this case, rather than undertake the same open rulemaking process it followed when implementing new unit determination rules applicable to a single industry, the Board simply issued a short deadline for submitting briefs in the Specialty Healthcare case. Fortunately, that action did not go unnoticed, and triggered a four-page letter to the Board from Health, Education, Labor and Pension Committee Ranking Member Senator Michael Enzi and committee members Senators Orrin Hatch and Johnny Isakson, who criticized the proposal as inconsistent with the NLRA and threatened Congressional intervention if the Board rushed through such a fundamental change in American labor law outside the public rule-making process.
It remains to be seen whether the unelected Democratic appointees at the NLRB will, like their colleagues at the NMB, skirt the rulemaking process in order to undermine foundational principles of workplace democracy requiring majority support of a workforce in order to impose union representation.
Peter C. Schaumber is the former chairman of the National Labor Relations Board.