The National Labor Relations Board’s activist majority has sprung yet another holiday season surprise. Employers probably won’t find in it a gift to their liking. 

The Board announced on December 22nd that in order to come up with a standard for determining appropriate bargaining units in the long-term health care industry, and possibly others, it is inviting interested parties to file briefs on a series of issues it has framed to help it make a decision.  The NLRB is taking up a decade-old case so it can revisit a two-decade-old case in which it said — no surprise, given its 75-year history of doing the same — that such determinations would be made by adjudication. 

Its action comes in Specialty Healthcare & Rehab. Ctr., 356 NLRB No. 56.  The case it wants to revisit is Park Manor Care Center, 305 NLRB 872 (1991).  In Park Manor, the agency embraced a practical or empirical approach that could account for recurring factual settings as well as the Board’s traditional “community of interest” factors.  Sounds reasonable.  So why change?  According to the Board majority, because the past 20 years have wrought major changes and brought burgeoning employment in the industry.  Well, maybe, but we believe that what this NLRB really wants is to satisfy its labor union constituency.  It will try to set in stone criteria that will all but assure successful union organizing in the industry.  Look for rulemaking to achieve that end. Can rulemaking for bargaining units in other industries be far behind?

The sole Board member who doesn’t share the majority’s allegiance has seen the handwriting on the wall.  Member Brian Hayes warns that his colleagues are “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction — a test that has stood for at least 50 years.” He predicts the start of an “initiative [that] clearly represents broad scale rulemaking” and “will most certainly become a lightning rod for Congressional inquiry and protests from the labor-management community.” 

With a Republican-controlled House of Representatives taking office in January, that inquiry may come sooner rather than later.  The new House leadership should call upon the Board Chairman and its Members for an accounting.  If broad-scale change was wanted, Congress would have made it happen.  It didn’t.  The proposed Employee Free Choice Act (EFCA) failed.  The Board should not be able to circumvent that judgment.