Union elections and the NLRB. The healthcare industry continues to challenge bargaining unit determinations

In the healthcare industry today, unions and management must cope with a confused, contradictory, and often changeable body of law and National Labor Relations Board (NLRB) policy when unions attempt to establish themselves at a particular institution. More than 15 years ago, Congress amended the National Labor Relations Act to grant labor unions the right to organize employees of not-for-profit hospitals and other healthcare organizations. An election to form a union cannot be held, however, until the NLRB determines which employee classifications constitute an "appropriate" collective bargaining unit. Since 1974, labor and management have fought over this basic question before Congress, the NLRB, and the federal courts. One paragraph of congressional instruction to the NLRB, which stipulates that the board prevent "proliferation of bargaining units in the health care industry," has over the years been construed in widely varying ways by the board and the courts. Management has argued that two units should be the maximum number allowed as appropriate whereas unions have argued for more. Last April the NLRB established a rule allowing for as many as eight bargaining units at a particular institution, but three months later a federal district court issued a permanent injunction against the rule. The board has appealed the injunction, and as both sides await a ruling, dozens of pending hospital union election cases have mounted up. Nor does a decision by a court of appeals promise to resolve the issue.