Significant Decisions in Labor Cases
Hukill, Craig, Monthly Labor Review
Significant decisions in labor cases
The National Labor Relations Act grants workers the right to form, join, and be represented by a union for purposes of bargaining collectively with their employer. (1) However, before a union can be recognized as the workers' representative, it must win the support of a majority of workers in a "unit appropriate for [collective bargaining] purposes." (2) Often, labor and management cannot agree on what constitutes an "appropriate" bargaining unit, and the National Labor Relations Board is asked to decide what does. To guide the Board in making a decision, the National Labor Relations Act directs it to "decide in each case whether. . .the unit. . .shall be the employer unit, craft unit, plant unit, or subdivision thereof." (3)
Until recently, the National Labor Relations Board determined whether a bargaining unit was appropriate only in the context of a specific dispute and not through broad policy pronouncements. However, in 1989, the Board exercised its seldom-used statutory authority (4) to issue substantive regulations when it established rules defining the appropriate bargaining units in acute care hospitals. (5) These regulations provide that distinct bargaining units will be recognized only for registered nurses, physicians, professionals who are neither registered nurses nor physicians, technical employees, skilled maintenance workers, business office clerical employees, guards, and all other nonprofessional employees. (6)
The same day the Board issued its regulations, the American Hospital Association filed suit in Federal district court to prevent the regulations from taking effect. (7) The association claimed that the Board would violate its statutory duty to make decisions "in each case" if it made bargaining unit determinations on the basis of generally applicable regulations. The hospital group also claimed that the regulations are not consistent with the will of Congress, as expressed in the legislative history of the 1974 amendments to the National Labor Relations Act, because they allow undue proliferation of bargaining units. (8) Finally, the association argued that the rule itself should not be enforced because it is arbitrary.
The district court agreed with the association that the regulations permit too many bargaining units, and the court permanently enjoined the Board's regulations. (9) The Board appealed to the Court of Appeals for the Seventh Circuit, and on April 11, 1990, the circuit court, in American Hospital Association v. NLRB, (10) reversed the district court's decision. According to Judge Richard Posner, who wrote the court's unanimous opinion, Congress did not warn the Board against allowing bargaining units to proliferate out of concern for preventing situations in which eight units or fewer might be permitted. Instead, Congress was concerned about more egregious situations, such as one mentioned in the amendment's legislative history involving 21 separate bargaining units. "That," Judge Posner said, "is proliferation." (11)
The health care industry and unions that represent or want to represent its workers are following this issue closely. In general, the industry favors allowing fewer collective bargaining units with more employees because larger units are considered more difficult for unions to organize. In addition, many in the industry think that both negotiating costs and the likelihood of strikes can be minimized if only a few large bargaining units are permitted. On the other hand, unions usually prefer smaller, more numerous bargaining units because they are easier to organize. They also prefer clear guidelines that are easily understood and applied because such guidelines have the potential for minimizing disputes that may delay representation elections. (12)
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Publication information: Article title: Significant Decisions in Labor Cases. Contributors: Hukill, Craig - Author. Journal title: Monthly Labor Review. Volume: 113. Issue: 8 Publication date: August 1990. Page number: 38+. © 1999 U.S. Bureau of Labor Statistics. COPYRIGHT 1990 Gale Group.
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