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Specialty Healthcare & Rehab. Ctr. Of Mobile, 357 NLRB No. 83 (2011)

Introduction
The National Labor Relations Board ("NLRB" or "Board") overturned its decision in Park Manor Care Center, 305 NLRB 872 (1991) and held that the traditional community of interest standard will determine appropriate bargaining units in non-acute healthcare facilities. The Board then clarified how, in any industry, its traditional community of interest standard should be applied where a non-petitioning party argues that a petitioned-for unit that is readily identifiable as a group and shares a community of interest is inappropriate because it does not include additional employees. In such circumstances, the Board held, the non-petitioning party has the burden of demonstrating an "overwhelming" community of interest between the included and excluded employees. Applying this standard to the petition before it, the Board approved the petitioned-for unit of certified nursing assistants ("CNA's").

The Facts and Procedural History
District 9 of the United Steelworkers filed a representation petition with the NLRB for a bargaining unit of all full-time and regular part-time CNA's at Specialty Healthcare and Rehabilitation Center of Mobile ("Employer"), a nursing home and non-acute healthcare facility. The Employer contended that the only appropriate unit containing the CNA's would include all non-professional service and maintenance employees. The Regional Director found the petitioned-for unit to be appropriate and the Board granted the Employer's request for review. The Board then issued a notice and invitation for briefs to be filed by the parties and interested amici.

Several questions raised in the invitation for briefs related to the Board's 1991 decision in Park Manor in which it established the unique standard to determine appropriate units in non-acute healthcare facilities. Under the Park Manor standard, sometimes referred to as the "pragmatic" or "empirical" community of interest standard, the Board considers traditional community of interest factors, the evidence gathered and findings reached in the rulemaking proceeding that lead to the Board's 1989 acute care unit rules,2 and prior precedent concerning the type of facility, employees or proposed unit at issue.

The NLRB's Majority Decision

The Board overruled Park Manor, eliminating its so-called "empirical" or "pragmatic" community of interest approach. The majority concluded that the Park Manor standard "has become obsolete, is not consistent with our statutory charge, and has not provided clear guidance to interested parties or the Board." Rejecting the "backward-looking" standard as "confusing and misguided," the majority stated, "it is no longer sound policy to focus on a rulemaking record created over two decades ago concerning a highly dynamic industry and on cases decided even earlier." The Board thus held its traditional community of interest standard to be the proper standard for unit determination in nursing homes and other non-acute healthcare facilities, as in all workplaces other than acute care hospitals. Applying the traditional community of interest factors to the CNA's covered by the petition, the Board easily concluded that, "employees in the proposed unit clearly (and undisputedly) share a community of interest."

Continuing its analysis, the majority stated, "we come to the question of what showing is required to demonstrate that a proposed unit consisting of employees readily identifiable as a group who share a community of interest is nevertheless not an appropriate unit because the smallest appropriate unit contains additional employees." The Board emphasized that it needs only to find the petitioned-for unit to be an appropriate unit, not the most appropriate unit, and that there may be multiple arrangements of appropriate units in a single workplace.

After acknowledging a lack of total clarity, or at least of consistent use of verbiage, in prior precedent, the Board held:

We therefore take this opportunity to make clear that, when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

Because the facts clearly did not establish that the other service and maintenance employees shared an overwhelming community of interest with the CNA's, the Employer could not meet this burden, and CNA's-only unit was found appropriate.

The Dissent
Member Hayes, dissenting, accused the majority of making "sweeping changes to established law" without engaging in rulemaking "for the purely ideological purpose of reversing the decades-old decline in union density in the private American work force." Member Hayes held up Park Manor as a balanced and reasoned legal standard that, contrary to the majority's claims, had not caused confusion amongst interested parties in the present case or generally, but rather, had been maintained "without controversy" for twenty (20) years. He assesses that the majority's decision makes it virtually impossible for a party opposing a petitioned-for unit to prove that any excluded employees should be included, and he predicts that the decision "will in most instances encourage union organizing in units as small as possible, in tension with, if not actually conflicting with, the statutory prohibition in Section 9(c)(5) against extent of organization as the controlling factor in determining appropriate units."

Unions' Perspective

The Board significantly clarified the legal terrain on which unions plan and carry out organizing campaigns in non-acute healthcare facilities. By overturning Park Manor's vague, backward-looking directives, and reinstating the traditional community of interest standard, unions will be better informed in directing their organizing efforts among nursing home and other long-term care workers.

Unions should also be heartened by the Board's clarification of how it will analyze employers' commonly-made claims of under inclusion in petitioned-for units. By holding employers to an "overwhelming" burden after ready identification of the petitioned-for employees and a community of interest amongst them has been established, the Board appropriately recognizes the centrality of employees' right to self-organization and the variety of combinations of appropriate units that may exist at a single workplace under settled Board law and policy.

Finally, while the Board's decision increases the opportunities available from a legal perspective for unions to pursue incremental organizing efforts at an employer after establishing "footholds" of recognition in small units, a number of context-specific practical and strategic considerations may often counsel against such an approach. Therefore, the Specialty Healthcare decision is unlikely to lead to any explosion of union petitions to represent small units.

Management's Perspective

With Specialty Healthcare, the Board has continued its sharp pendulum swing toward unions. Former Chairman Schaumber persuasively argued that a "proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer's operations" and warned that "fragmentation of the workforce does not enhance collective bargaining, it undermines it."1 Since its inception, the Board has interpreted the Act to limit the proliferation of small units and avoid using a union's success in organizing employee groups as a test to determine the suitability of a bargaining unit.

While the Board's decision will likely curtail common litigation over the proper scope of bargaining units, the Board's chosen "cure" may prove worse than the supposed "disease" of under inclusion claims. The decision permits unions to narrowly tailor units around pro-union sentiment to establish a foothold of recognition from which to build. Employers that want to remain union-free are now only as strong as their weakest link-the most disaffected group of employees. With the possibility of "quickie" elections, and a clearly hostile Board, employers both inside and outside the healthcare industry must refocus on employee sensing sessions and other pre-petition union avoidance strategies. Specialty Healthcare's potential impact outside of the healthcare industry will likely depend on the success of current Congressional efforts to limit Specialty Healthcare and on the outcome of the upcoming 2012 elections. For now, employers appear to have an even more remote chance of success when challenging a union's definition of an appropriate bargaining unit.

This Hot Topic was prepared by the ABA Section of Labor & Employment Law Committee on the Development of the Law Under the NLRA with the assistance of Douglas A. Hass, who represents management at Franzek Radelet in Chicago, IL and Michael R. Hickson, who represents unions at Levy Ratner in New York, NY.

1The Board's acute care unit rules established eight appropriate bargaining units as the only appropriate units in acute care hospitals absent extraordinary circumstances. 19 C.F.R. ยง103.30.

2Peter C. Schaumber, NLRB Skirts Formal Rulemaking Requirements, The Hill's Congress Blog (Apr. 18, 2011, 9:28 AM), http://thehill.com/blogs/congress-blog/labor/156577-nlrb-skirts-formal-rulemaking-requirements.

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