03/14/2024: Default Judgment. Employer Successfully Challenges Unit Definition.

More applications of Oakwood Healthcare and Specialty Healthcare.

1. Flatline Construction, 373 NLRB No. 35, 27-CA-317078 (Published Board Decision). Flatline was alleged to have violated Section 8(a)(1) of the NLRA by prohibiting employees from discussing wages with each other, threatening discharge for discussing wages, and firing employee Jerod Willard for doing so. Flatline failed to answer the complaint and so the Board granted the general counsel’s motion for default judgment and ordered rescission of the rule against discussing wages as well as reinstatement and backpay for Willard.

2. Eldora Enterprises LLC, 27-RC-330040 (Regional Election Decision). The Communication Workers of America (CWA) sought to represent a unit of ski patrollers and medics. The employer argued that the petitioned-for unit should also include a group of volunteer ski patrol employees who are compensated via fringe benefits rather than wages, which CWA objected to. The regional director applied the Specialty Healthcare community-of-interest test to conclude that the volunteer ski patrol employees should be included in the unit. Although the Volunteer SP1s are compensated differently, they share nearly all other terms and conditions of employment with the wage-earning ski patrollers, including common supervision, job functions, training, hours, and policies. The small differences were outweighed by the overwhelming similarities.

3. Fountainview LaPorte Operating LLC d/b/a Brickyard Healthcare - Terrace Care Center, 25-RC-333091 (Regional Election Decision). The Teamsters are seeking to represent a unit of nurses. The employer argued that the registered nurses (RNs) and licensed practical nurses (LPNs) are supervisors that should be excluded from the unit. The regional director applied Oakwood Healthcare to conclude that supervisory status had not been proven and that the LPNs and RNs could be included in the unit. While they have some supervisory-type duties, the employer lacked the specific, detailed evidence required to show they genuinely exercise independent judgment in carrying out supervisory functions like assigning, disciplining, or directing qualified medication aides (QMAs) and certified nursing assistants (CNAs).

4. Acumen Capital Partners LLC, 29-CA-291981, DC Circuit (Board Appellate Brief). In the underlying Board case, an employer fired an employee who was engaged in union activity, claiming that it did so because the employee had failed to adhere to a local government vaccine mandate. The Board found that this reason was pretextual, that the real reason was retaliation for union activity, and ordered reinstatement with backpay. The employer’s appeal to the DC Circuit challenges the Board’s factual findings. The linked brief from the NLRB rehashes the factual findings and repeats basic Board law (Wright Line) governing how pretextual firings are proved. The standard of review for factual findings is very deferential to the Board and so it is unlikely that the employer will prevail.

Employers frequently seek to add employees to a petitioned-for bargaining unit because they think that those employees are likely to vote no in a union election. Under Board law (Specialty Healthcare), these challenges typically fail because, to prevail on them, it must be the case that the excluded employees at issue share an “overwhelming community of interest” in that there is “no legitimate basis upon which to exclude” them. If “there are more than minimal differences,” then “the petitioned-for employees has a rational basis such that collective bargaining limited to that unit may appropriately take place.”

Thus it is notable that Eldora Enterprises was able to successfully add the volunteer ski patrols to the petitioned-for unit in document (2) above.