05/23/2011 06:39 pm ET Updated Jul 23, 2011

Certified Nursing Assistants At Center Of National Labor Dispute

WASHINGTON -- In late 2008, a small group of certified nursing assistants in Mobile, Ala., made a bid to unionize. Two and a half years later, the nursing assistants' union hopes are still in limbo, but their little-known case has taken on national importance.

Specialty Healthcare, as the case is known, has become the next battleground in a highly public war that pits Republicans and business interests against the National Labor Relations Board (NLRB) under the Obama administration.

At issue is how workers are organized into bargaining units. The Mobile nursing assistants tried to unionize as a group made up only of nursing assistants. Their employer, however, insisted that a slew of other nursing-home employees, from dietary aides to maintenance workers, be included in their unit, a stipulation that would make it more difficult for the nursing assistants to win an election to unionize. The Democratic-majority NLRB has taken up the case and suggested it may reevaluate the rules that define bargaining units -- not just for health care workers, but for workers in all industries.

Their decision just might remove some of the hurdles to unionizing. And that prospect has industry groups and their Republican allies very concerned.

Among those who've filed briefs decrying the NLRB's decision to take up the case: the U.S. Chamber of Commerce, the Retail Industry Leaders Association, the American Health Care Association, the American Hospital Association, the anti-union Coalition for a Democratic Workplace, and Republican Sens. Mike Enzi (Wyo.), Orrin Hatch (Utah), and Johnny Isakson (Ga.).

NLRB critic Rep. John Kline (R-Minn.) has taken the extraordinary step of asking the labor board to turn over internal documents related to its deliberations on the Specialty Healthcare case. Rep. George Miller (D-Calif.), who's been defending the board against relentless attacks from Republicans in recent weeks, has called Kline's requests "improper" and said they raise "serious concerns" about lawmakers influencing the independent labor board.

A spokesman for Kline did not respond to requests for comment. Aaron Albright, a spokesman for Democratic members of the House Committee on Education and the Workforce, said, "As far as we know, it’s unprecedented to demand these sorts of documents in a pending case from the NLRB."

If it refuses to turn over the documents, the labor board could be dragged even further into a political fight with Republicans and business leaders. Sen. Lindsey Graham (R-S.C.) has accused the board of having a pro-union, anti-business "agenda," and a wide coalition of Republicans have assailed the board over a complaint its general counsel filed against the Boeing Company. Republicans have vowed to block Obama's nominees to the board and even threatened to defund the complaint against Boeing.

A spokesperson for the NLRB declined to comment on the Specialty Healthcare case. But in a filing, the labor board wrote that it had a responsibility to reevaluate the rules governing bargaining units, given how much the health care industry has changed in recent years.

From the standpoint of union officials and worker advocates, the Specialty Healthcare case could eliminate a lot of the red tape that employers use to prevent their workers from forming unions and bargaining collectively. According to Carter Wright, a spokesman at the SEIU, employers often delay a union election by arguing that the employees should be grouped with a different set of workers.

"It slows things down incredibly," said Wright. Redefining the rules, he went on, would "reduce employers' ability to misuse the law and delay."

In its brief, the Chamber insists that changing the rules would lead to a proliferation of "smaller, fragmented" bargaining units, making it more difficult for parties to reach agreement and ultimately leading to more strikes. Ultimately, the trade group falls back on its most familiar argument: The NLRB, it says, will kill jobs at a time when businesses are "still struggling to recover and create new jobs after a prolonged recession."

Enzi, Hatch, and Isakson have made a more novel argument. In a co-signed brief, they claim that letting workers unionize in smaller bargaining units would actually hurt the workers themselves. "These employees will become greatly disadvantaged in a workplace dominated by competing factions," they write.

The Mobile nursing assistants would probably argue that a smaller, fragmented bargaining unit is better than no unit at all. John Borsos, vice president of the National Union of Healthcare Workers, says that nursing assistants have one of the more difficult and thankless jobs in the industry. They do the nursing home's grunt work -- feeding patients, checking vital signs, changing bedpans, and turning patients over to prevent bedsores.

"The absolute bulk of the work that occurs in a nursing home is done by them," said Borsos. "It's a chronically understaffed profession, and one of the most dangerous occupations because of the lack of staffing. It's very common to see a [nursing assistant] blow out her back because she's turning so many patients."

Even though the job requires certification, the pay for a nursing assistant starts out around $9 an hour and goes up to about $12. Many nursing assistants don't have their own health insurance, despite working in the health care field.

According to Wright, nursing-home chains often pressure nursing assistants not to unionize, and when workers try to negotiate over staffing and pay, their pleas often go ignored. The Specialty case, he argues, could level the playing field for workers. Unionized nurses, with greater job security, are also more likely to report abuses by management.

"We're going to have a huge number of patients needing care from these people," Wright said. "It would be great if they had a stronger voice as to what kind of job it is and what kind of care is delivered. The workers would be better off, and so would the patients."