Employment Law Daily NLRB’s Health Care Rule doesn’t apply in election to add residual employees to existing unit
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Thursday, August 18, 2016

NLRB’s Health Care Rule doesn’t apply in election to add residual employees to existing unit

By Ronald Miller, J.D. Addressing the application of the Health Care Rule, the D.C. Circuit held that the NLRB’s distinction between preexisting bargaining units and new units under the Rule was not arbitrary or incompatible with the Board’s own precedent. Here, the appeals court upheld the Board’s understanding that the Rule was inapplicable in the context of elections to add employees to a preexisting unit. Accordingly, a hospital’s claim that a union seeking to add unrepresented patient care technicians (PCTs) to a preexisting nonconforming unit should have been expanded to encompass all unrepresented nonprofessional employees was rejected because of the Board’s exemption of self-determination elections from the regulation (Rush University Medical Center v. NLRB, August 16, 2016, Srinivasan, S.). In 1989, the NLRB promulgated the Health Care Rule to address concerns about undue proliferation of collective bargaining units in health care facilities. The Board determined that an excessive number of bargaining units increased the prospect of jurisdictional disputes and work stoppages, potentially impairing the provision of health care services to the public. The Health Care Rule established eight standardized bargaining units for acute-care hospitals: registered nurses; physicians; professionals other than registered nurses and physicians; technical employees; skilled maintenance employees; business office clerical employees; guards; and all other nonprofessional employees. Collective bargaining units in an acute-care hospital were to consist of only those eight units. Preexisting nonconforming units. However, the rule included an exception from that mandate for nonconforming units already in existence at the time of the Rule’s promulgation. Preexisting nonconforming units were left for the Board to address on a case-by-case basis through adjudication. In undertaking those adjudications, when "there are existing non-conforming units . . . and a petition for additional units is filed . . . the Board shall find appropriate only units which comport, insofar as practicable, with the appropriate unit" from the eight standardized units. With respect to the applicable regulation, 29 C.F.R. §103.30, the Board explained that "[b]y its terms, Section 103.30(c) applies only to petitions for ‘additional units,’ that is, petitions to represent a new unit of previously unrepresented employees, which would be an addition to the existing units at a facility." When a union brings a petition to represent such a new unit of previously unrepresented employees (who are referred to as "residual employees"), the Board has further determined that the additional unit must include all residual employees who would fit within the same standardized unit under the Rule. The Board does not apply the same understanding, however, if a union seeks to add residual employees to an already existing unit rather than to create a new unit. The mechanism by which a union adds employees to an existing unit is known as an Armour-Globe, or self-determination, election. In St. Vincent Charity Med. Ctr., the Board exempted Armour-Globe elections from Section 103.30(c) in particular and from the Health Care Rule more generally. "An Armour-Globe election permits employees sharing a community of interest with an already represented unit of employees to vote whether they wish to be added to the existing unit." Self-determination election. The employer in this case is an acute-care teaching hospital. A union has long represented a unit of hospital employees in different nonprofessional job classes. The unit is a preexisting nonconforming unit under the Health Care Rule because it includes employees from two of the eight enumerated categories—"other nonprofessional" employees and "skilled maintenance" employees—but it does not include all of the employees in either category. In 2014, the union petitioned for a special election that would enable unrepresented PCTs to vote to be included in the preexisting nonconforming unit. PCTs qualify as "other nonprofessional" employees. The hospital opposed the proposed voting group on the ground that it was underinclusive. In the hospital’s view, the voting group needed to encompass all unrepresented nonprofessional employees, not just PCTs. An NLRB regional director found that the petitioned-for voting group was appropriate, and the Board denied the hospital’s request for review. The residual PCTs voted to be included in the preexisting nonconforming unit. Thereafter, the hospital refused to bargain, and later was found to have unlawfully refused to bargain. The hospital now petitions for review and the Board cross-applied for enforcement of its order. Interpretation of Health Care Rule. The hospital contended that the Board’s bargaining unit determination in this case relied on an impermissible interpretation of the Health Care Rule. It asserted that Section 103.30(c)’s requirement to conform to the Rule "insofar as practicable" should operate no differently in an Armour-Globe self-determination election than in an election that would add a new bargaining unit. Rejecting the hospital’s challenge to the Board’s interpretation and application of the Health Care Rule, the appeals court found that the Board’s interpretation of the Rule in St. Vincent is fully consistent "with the regulation itself." Pointing to the language of the regulation, the court found that it applied by its terms to "a petition for additional units." The court noted that an Armour-Globe self-determination election, by its nature, does not involve the creation of any "additional units." Rather, it involves the inclusion of additional unrepresented employees in an already-existing unit. Consequently, the Board’s exemption of Armour-Globe elections from Section 103.30(c) was entirely compatible with the regulation’s terms. NLRB’s understanding of Rule. Moreover, the D.C. Circuit concluded that the Board’s understanding of the Health Care Rule was not arbitrarily at odds with the regulation’s objective. The Rule guards against undue proliferation of bargaining units in acute-care hospitals. An Armour-Globe self-determination election, by definition, involves no proliferation of bargaining units at any facility, explained the court. The number of bargaining units remains constant. Thus, the Board did not act arbitrarily by drawing a distinction between the two types of elections. In short, because St. Vincent reasonably found Armour-Globe elections to fall outside the scope of Section 103.30(c), and because this case involves an Armour-Globe election, the appeals court rejected the hospital’s argument that the bargaining unit at issue here impermissibly conflicted with Section 103.30(c).

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