Labor Board Issues Decision on Appropriate Units in Non-acute Health Care Facilities

The National Labor Relations Board (NLRB) has adopted a new approach for determining what constitutes an appropriate bargaining unit in health care facilities other than acute care hospitals (which are covered by the Board’s Health Care Rule).

In addition, the Board clarified the criteria used in cases where a party argues that a proposed bargaining unit is inappropriate because it excludes certain employees. The Board did not create new criteria for determining appropriate bargaining units outside of health care facilities.

The 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile finds that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. It overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities.

Employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces. The Board majority found that the 53 CNAs who sought an election in Specialty Healthcare constituted an appropriate unit, and remanded the case to the region to schedule an election.

“We have concluded that the Park Manor approach to determining if a proposed bargaining unit in a nursing home is an appropriate unit has become obsolete, is not consistent with our statutory charge, and has not provided clear guidance to interested parties or the Board,” the majority – Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce—wrote.

Where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit.  That test is drawn from Board precedent and has been endorsed by the United States Court of Appeals for the District of Columbia Circuit, the decision noted.

In dissent, Member Brian Hayes stated that he would adhere to Park Manor. “which established a balanced legal standard maintained in nonacute care health care unit cases without controversy for 20 years (and without any objection from the party seeking review in this case).”

He also disagreed that the majority’s statement of the community of interest test was consistent with precedent.  In his view, “the majority accepts as the definitive standard for unit determinations in all industries an ‘overwhelming community of interest’ test that will make the relationship between petitioned-for unit employees and excluded co-workers irrelevant in all but the most exceptional circumstances. The wording of the test may be different, but in practical effect this is the standard espoused by the dissent and rejected by a Board majority in Wheeling Island Gaming, Inc. [355 NLRB No. 127 (2010)].”

The Board granted review of Specialty Healthcare and invited briefs from interested parties in December 2010.

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