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by David J. Laurent and Brian D. Balonick

On August 30, 2011, the National Labor Relations Board ("Board") overruled a prior, long-standing decision regarding appropriate bargaining units in nursing homes, rehabilitation centers and other nonacute healthcare facilities, and set forth a new standard that will make it easier for unions to organize select groups of employees in the nonacute care industry, as well as other industries.

In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011), the Board ruled that certified nursing assistants in a nursing home comprised an appropriate bargaining unit despite the employer’s argument that the unit must include other non-professional employees. In so doing, the Board overruled its 1991 decision in Park Manor, 305 NLRB 872 (1981), which had held that certified nursing assistants had to be included with other non-professional employees to form an appropriate bargaining unit.

The Board initially concluded that the Park Manor standard had become obsolete and that employees of nonacute healthcare facilities should be subject to the same "community-of-interest" standard the Board traditionally uses in other work places and industries, which standard considers "whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer's other employees; interchanges with other employees; have distinct terms and conditions of employment; and are separately supervised."

Next, and more importantly, the Board concluded that when a petitioned for group of employees shares a community of interest but the employer argues that the smallest appropriate unit must include other employees, the employer must meet a heightened standard and prove that the other employees share "an overwhelming community of interest" with the employees in the proposed unit. The Board explained that, for example, a petitioned for unit consisting of certified nursing assistants who worked on the first floor or those who worked the second shift would be a fractured unit and adding the certified nursing assistants from the other floors or other shifts would meet this heightened standard.

Applying this new standard, the Board concluded in Specialty Healthcare that the certified nursing assistants constituted an appropriate unit. The Board reasoned that the certified nursing assistants shared a community of interest given that they wore distinctive uniforms, they were in the same department, they had the same supervisors, their duties were unlike the duties of the other, non-professional employees, they had to obtain certain licenses and training, there was little interchange with the other employees and there was no evidence of transfers between the two groups. The Board further reasoned that the employer had failed to satisfy the "overwhelming community of interest" standard needed to add the other non-professional employees. Although the Specialty Healthcare decision involved a nonacute healthcare facility, there is no reason to believe that the ruling will be confined to the healthcare industry. Instead, the new standard likely will apply universally to all future bargaining unit determinations.

Accordingly, under Specialty Healthcare, unions may seek to represent “cherry picked” groups of dissatisfied employees who share certain interests and exclude other employees who may be less inclined toward union representation. If the union can show that the petitioned for group shares a community of interest, the unit will be upheld unless the employer can show that other employees should be included under the new “overwhelming community of interest” standard. In short, employers may face elections in which only small groups of employees — perhaps limited to a single job classification — will be eligible to vote. 

Consequently, employers who seek to remain union free should reconsider their strategies given the new possibility that small or select groups within their workforces may be targeted for union organizing.