NLRB Issues Rule and 2 Decisions Affecting Aging Services Providers
Original story by Jennifer Hilliard Published On: Sep 01, 2011
Edited by staff at Certified care
We’re seeing significant interest from lawyers and law firms in the Final Rule published August 24, 2011 by the National Labor Relations Board (NLRB) that requires private employers to post notice of employee rights under the National Labor Relations Act. In the final rule, Chairman Liebman acknowledged that the purpose of the rule is to increase employee awareness of their rights, which in turn will increase union organization, by stating: ‘Informing employees of their statutory rights is central to advancing the NLRB’s promise of full freedom of association, self-organization and designation of representatives of their own choosing.’
In support of its argument that this rule is needed, the NLRB asserted that because most private employees are unorganized, they do not know their rights under the NLRA.
“In addition to physical posting at ‘conspicuous places…readily seen by employees, including all places where notices to employees are customarily posted,’ any employer that ‘customarily communicates’ via intranet or internet with its employees as to ‘personnel rules or policies’ must display an exact copy of the Notice on such site(s), or a link to the NLRB’s web site which reads, ‘Employee Rights under the National Labor Relations Act.’” said a spokes person from Fisher & Phillips LLP.
The National Labor Relations Board (NLRB) has issued a final rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act. It also has released 2 decisions that have the potential to greatly affect elderly services providers. The NLRB has posted a Fact Sheet with additional details about the notice requirements of the rule.
The final rule, which becomes effective on Nov. 14, 2011, requires employers to post a employee rights notice in places where other workplace notices are typically posted, as well as on an internet or intranet site if employers also typically use these sites to post notices to employees regarding personnel rules or policies.
What the Employee Rights Notice Must Include
The notice must state that employees have the right to:
- Act together to improve wages and working conditions
- Form, join and assist a union
- Bargain collectively with their employer; and to refrain from any of these activities.
The notice also must provide examples of unlawful employer and union conduct and instruct employees how to contact the NLRB with questions or complaints. The rule also prescribes the size of the poster and required typeface. The NLRB will be making the notice available for download from its website in the coming days. The notice will also be made available to employers at all NLRB regional offices.
2 NLRB Decisions
- In the case of Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Case 15–RC–8773 (Aug. 26, 2011), the NLRB found that certified nursing assistants at a nursing home may comprise an appropriate bargaining unit without including all other non-professional employees. As a result, employees of long term care facilities will be subject to a “community of interest” standard such that if an employer argues that a proposed bargaining unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit. The practical effect of the decision is that there likely will be multiple bargaining units within a facility based on job classifications. Earlier this year, LeadingAge joined with other aging services organizations to submit an amicus curiae (friend of the court) brief to the NLRB in the Specialty Healthcare case. In that brief, the organizations, including LeadingAge, argued that the traditional method of determining appropriate bargaining unit composition should remain in effect, and any changes should be subject to formal rulemaking procedures. Despite these arguments, however, the NLRB ruled in favor of the union position in the case.
- In Lamons Gasket Company, A Division of Trimas Corporation and Michael E. Lopez, Petitioner and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Case 16–RD–1597 (Aug. 26, 2011), the NLRB held that a union decertification petition by employees will be barred for a “reasonable period of time” after voluntary recognition of union representation by their employer. Under a previous decision by the NLRB, such a petition could be filed 45 days after an employer and union agreed to the terms of voluntary recognition of union representation. Such petitions allow employees objecting to the representation to seek an election by secret ballot to decertify the union representation. Under the Lamons Gasket decision, employees would now have to wait up to a year before submitting a decertification petition. The effect of the NLRB’s decision in the case will be to make it more difficult for employees to challenge a union’s status as their exclusive bargaining representative in the workplace.
Neither of the decisions is unexpected, given the current composition of the NLRB, which consists of a majority of members who are largely supportive of liberalizing labor rules to promote the opportunity for greater union representation in the workplace.
Certified Care , CertifiedCare.org and LeadingAge , formerly Aasha, understands the enormous implications that these decisions are likely to have on members. We are exploring our options, both legally and legislatively, and will be conferring with the other aging services organizations that joined together on the amicus brief, the LeadingAge Legal Committee and Hill staff, particularly on the House side, to develop a comprehensive strategy going forward.
Additionally, they will be emphasizing these developments in education sessions at the 2011 Annual Meeting.