In a decision announced on August 31, 2011, the National Labor Relations Board (“NLRB”) overturned a 20-year old precedent and changed the applicable standard for determining what constitutes an “appropriate bargaining unit” in non-acute health care facilities.

In this case, the United Steelworkers petitioned to represent a bargaining unit of 53 certified nursing assistants (CNAs) at the Specialty Healthcare and Rehabilitation Center of Mobile. The employer opposed the petitioned-for unit and contended that the appropriate unit should include 33 additional nonprofessional service and maintenance employees. The NLRB rejected the employer’s arguments and certified the smaller unit.

As to non-acute health care facilities like nursing homes, the NLRB overruled a 1991 decision and announced that it would determine the appropriateness of petitioned-for units based on the NLRB’s traditional “community of interest” approach, instead of the “modified community of interest” approach it had used for the past 20 years. The modified approach allowed for the consideration of “recurring factual patterns” related to units in non-acute health care facilities in addition to the factors in the traditional community of interest approach.

This reversal of position is also important beyond the health care industry because the traditional community of interest approach is the standard widely used outside of the health care setting.

The NLRB’s decision further announced a new standard that health care and non-health care employers must satisfy in order to demonstrate that a petitioned-for unit is inappropriate. If the NLRB is presented with a petition that identifies a unit of employees that is readily identifiable as a group, and the NLRB finds that the employees share a community of interests under the traditional approach, the NLRB will also find the petitioned-for unit to be appropriate, despite an employer’s contention that a larger unit would be appropriate or even more appropriate, unless the employer “demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.”

NLRB Board Member Brian Hayes, the lone dissenter from the Board’s decision, recognized the significance of the new standard, stating that the decision “fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.”

This decision is likely to make union organizing easier, as unions can now target smaller, more cohesive groups of employees to organize. If successful in organizing one small group of employees, the union may then try to influence other groups of employees to organize. Moreover, with smaller and possibly multiple bargaining units, managing a business will likely be less efficient, and managing employee relations will be more complex due to the differing terms and conditions of employment that may be negotiated by the multiple employee groups.