Marking the end of Chairman Liebman’s tenure, the National Labor Relations Board issued three significant decisions reversing long-standing Board precedent.  In Specialty Healthcare and Rehabilitation Centers of Mobile, a decision of particular importance to long-term care and other non-acute healthcare facilities, the Board paved the way for the proliferation of bargaining units by overruling the 1991 Park Manor decision and determining that certified nursing assistants (CNAs) may comprise an appropriate bargaining unit without including other employees. 

In Park Manor, the Board adopted a pragmatic or empirical approach to examining the appropriateness of bargaining units in the non-acute care setting, such as long-term care facilities.  In addition to the traditional “community of interest” factors, the Board also considered the unique structure and organization of the work performed at such facilities, noting that “there is less diversity in nursing homes among professional, technical and service employees, and the staff is more functionally integrated.”  In adopting this approach, the Board sought to strike a balance between bargaining units that are too large, making union organizing difficult, and units that were too small, creating the risk of repetitious bargaining and frequent strikes.  Since Park Manor, the Board routinely combined CNAs with other service and maintenance employees in a single bargaining unit.   

In Specialty Healthcare, the Board in a 3-1 decision overruled Park Manor and implemented a new standard for determining appropriate bargaining units.  Under the new standard, if the Board finds that a petitioned-for unit is appropriate, despite the employer’s arguments to the contrary, the employer must then demonstrate that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit.  Applying this standard, the Board found that a petitioned-for unit consisting solely of CNAs was an appropriate unit.   

In his dissenting opinion, Member Hayes noted that the Board’s new test encourages unions to organize the smallest units possible, resulting in a fragmentation of the workforce in non-acute healthcare facilities.  Member Hayes also recognized that it is “virtually impossible” for an employer to prove that excluded employees should be included in a petitioned-for unit under the new standard.

In light of this decision, non-acute healthcare facilities face even greater risk of unionization and more complex ramifications of unionization among fragmented bargaining units.  Employers should consult with labor counsel to devise strategies to minimize this risk.   

photo credit: Escaflowne