A U.S. appeals court recently upheld the National Labor Relations Board’s Speciality Healthcare decision allowing unions to organize segments of workers in a given workplace rather than all eligible employees—a ruling with significant implications for the senior living industry.
The U.S. Court of Appeals for the Sixth Circuit granted the NLRB’s petition to enforce its decision to allow for “micro-unions” within the workplace in an August ruling pertaining to the Specialty Healthcare and Rehabilitation Center of Mobile (now known as Kindred Nursing Centers East) case.
“It’s our opinion that the NLRB wants to make it easier for unions to organize. Membership is at historical lows,” says Paul Williams, senior director of government relations at the Assisted Living Federation of America (ALFA), of the decision. “This is attractive to unions, because their bar is much lower—they don’t have to attract an entire workforce, just a segment. Then they have their foot in the door, and it could lead to others [unionizing].”
For senior living communities, that means a majority of employees aren’t necessary in order to vote for union representation.
“Under micro-unions, [they] can just go in and organize the kitchen staff, or the maintenance staff, etc.,” Williams says. “That’s all—just that one segment.”
That’s what happened in the case prompting the NLRB’s decision and subsequent appeals court upholding.
Nursing home operator Kindred categorizes employees in its Mobile, Ala. facility in eight separate departments, including nursing, resident activity, maintenance, and administration. The nursing department is further divided into certified nursing assistances (CNAs), licensed practical nurses (LPNs), and registered nurses (RNs).
A union petitioned to represent the Mobile facility’s 53 full-time and regular part-time CNAs, but Kindred argued that the bargaining unit should be expanded to include an additional 86 service and maintenance employees, court documents show.
The area’s regional labor relations director found that the CNAs alone constituted an appropriate unit to conduct an election. The region held the election and the union won, prompting Kindred to file a request for the NLRB to review the regional director’s decision regarding whether the CNAs were an appropriate unit.
The NLRB ordered that the bargaining unit of CNAs at Kindred comprised an “appropriate” unit, and the appeals court upheld that decision in August despite Kindred’s claims that the NLRB abused its discretion by adopting new standards for units.
“Because the overwhelming-community-of-interest standard is based on some of the Board’s prior precedents, has been approved by the District of Columbia Circuit, and because the Board did cogently explain its reasons for adopting the standard, the Board did not abuse its discretion in applying this standard in Specialty Healthcare II,” says the ruling.
The decision makes senior living and “many” other businesses much more attractive to organizers, says Williams, but could have detrimental results.
Micro-unions could be disruptive because unionized employees would probably have different work rules compared to non-unionized workers. In a sense, he says, it could be like two different workforces within one community, with unionized workers possibly receiving higher wages or enhanced benefits.
“If you have multiple unions within a workplace, then you’ve got several cost factors as far as contract compliance with multiple unions, as well as different wages, and potentially different benefits,” says Williams. “There’s definitely an overhead cost.”
While there are no projections for the rate at which micro-unions might begin appearing in senior living, ALFA thinks the industry will be attractive to organizers.
“It could [start happening] now,” he says. “Some organizers might have been waiting to see what the first court cases would look like. Here’s the first [case], and it affirmed the NLRB’s decision. We could start to see unions emboldened by this, getting more aggressive.”
The NLRB has not responded to SHN’s request for comment regarding current volume of micro-unions or how the ruling could impact the senior living industry.
For senior living providers, it will be important to communicate with employees, ALFA says.
“Senior living organizations should continue to be very active and vigilant, and be sure that they’re having conversations with their employees, communicated their union philosophy, and making sure they’re in tune with their employees,” says Williams. “[Micro-unionization] is certainly disruptive to the workplace; in the end it’s going to be more costly not just for providers but for residents, ultimately, if it happens in a community.”
Written by Alyssa Gerace