On August 26, 2011, the National Labor Relations Board (NLRB) overruled 20 years of precedent and ruled that unions may organize sub-units of employees in non-acute health care facilities.  The ruling, Specialty Healthcare, 357 NLRB No. 83, permits units that consist of only one department, or even just one job classification.  This new standard stands in stark contrast to the Board's prior practice of favoring "wall to wall" units.  Even outside the health care industry, the decision will have far-reaching impact.

Now, an "identifiable" group of employees with common interests will be deemed an appropriate bargaining unit unless the employer (or another interested party, such as another union) can show that employees in a larger unit share "an overwhelming community of interest with those in a petitioned for unit." (Emphasis added.)   In short, the Board will recognize a union's proposed unit without further inquiry, unless that unit clearly is a "fractured" unit.  (As examples, the Board discussed situations in which only selected certified nursing assistants (CNAs) petition for a union, saying that likely would be a fractured unit.  However, the Board also stated that a unit consisting of CNAs assigned to the night shift "might" (but obviously might not) be a fractured unit.)

As noted by dissenting member Hayes, this decision will apply in any industry subject to the Board's jurisdiction and effectively overrules decades of prior Board practice.  As he explained, the Board previously applied the "community of interest test" used to determine an appropriate bargaining unit by first determining whether the employees in the unit proposed had interests in common, and next determining whether the interests of that group were sufficiently distinct from those of other employees to warrant the establishment of a separate unit.  Now, the Board will simply conclude its analysis at the first step, unless the employer can meet the heightened standard to show that other employees share an "overwhelming" interest with the employees in the proposed unit.

Together with other recent actions of the Board – including its proposed rule to permit snap elections and to limit evidentiary hearings and Board review – this new standard represents a radically altered playing field.  As Hayes noted, the Board has encouraged unions to organize in units as small as possible, and its combined steps are geared to "make it virtually impossible for an employer to oppose [a union's] organizing effort either by campaign persuasion or through Board litigation."  What response these efforts will meet in the courts or in Congress remains to be seen.