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May 2011

NLRB Preparing to Make Union Organizing Easier in Nursing Homes

In December of 2010, the NLRB issued a notice and invitation for interested individuals to file briefs in connection with the Board's decision to reconsider whether the only appropriate unit in a nursing home was the traditional wall-to-wall unit that included all nonprofessional service and maintenance employees at a nursing home. The Steel Workers Union had petitioned for a unit including just CNAs and the Regional Director approved the union's petition and the employer appealed to the NLRB. The fact that the Board invited briefing on this suggests the Board will likely discontinue its practice of the past twenty (20) years in the nursing home industry of making bargaining unit determinations based on the traditional community of interest factors such that the functional integration of various positions in nursing homes made single wall-to-wall units proper and instead ease organizing rules to allow unions to target smaller groups of employees performing the same job at a single facility. Thus, nursing home facilities in the future may soon have to negotiate and administer multiple collective bargaining agreements with a number of unions representing different job classifications such as CNAs, LVNs, dietary aides, etc.

The Board's rationale from making this change is clear: It will be significantly easier from the union's perspective to organize these smaller units. However, this is just the tip of the iceberg. From the employer's perspective, such a change will make operating a nursing home much more difficult as the employer may have to negotiate collective bargaining agreements with multiple unions, administer a number of different collective bargaining agreements and thereby have to pay its various employees under a number of different wage schedules, grievance procedures, layoff procedures and benefit packages. Employers may also find reduced flexibility in personnel matters such as transfers, promotions, layoffs, overtime, and work schedules as a result of multiple collective bargaining agreements. Moreover, the employer may find itself caught in jurisdictional disputes with employees represented by different unions claiming that they alone are entitled to perform certain work. Ultimately, this will mean employers will need to spend significantly more time and money in negotiating collective bargaining agreements and complying with those agreements which ultimately will increase operating costs at a time when nursing homes are under pressure due to shrinking state budgets potentially limiting nursing facilities reimbursement rates under various under Medi-Cal and other states' Medicaid/Medicare programs.

Thus, employers should conduct audits to ensure they are in the best position to avoid unionization and, if already organized, conduct audits to determine what the employer can do to persuade their employees to decertify the union.

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