In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 2011), the National Labor Relations Board (NLRB) ruled that certified nursing assistants (CNAs) at a non-union nursing home and rehabilitation center may comprise an appropriate bargaining unit without including all other nonsupervisory, nonprofessional service and maintenance employees. In issuing this ruling, the NLRB overruled its decision in Park Manor Care Center, 305 NLRB 872 (1991), and set forth a new standard for determining whether a proposed bargaining unit is appropriate under the National Labor Relations Act.

In Specialty Healthcare, the union petitioned for a bargaining unit that consisted of just 53 CNAs in the nursing home. The employer objected to the petitioned-for unit on the grounds that the unit should include all nonsupervisory, nonprofessional service and maintenance employees, including the CNAs, in accordance with the long-standing recognition that there should not be a proliferation of bargaining units in the healthcare industry. In rejecting the employer's argument, the NLRB held that Park Manor's "idiosyncratic" approach to determining the appropriateness of bargaining units in non-acute healthcare facilities was "obsolete" and failed to provide clear guidance to employers and unions.

In overruling Park Manor, the NLRB said it would now apply "traditional community-of-interest considerations" in determining whether a petitioned-for unit is an appropriate unit in facilities other than acute care hospitals (which are governed by the NLRB's Health Care Rule providing for eight distinct units). Such considerations include whether employees had similar responsibilities, supervisors, skills, working conditions, and pay scales. For the first time, the NLRB also held that where a union petitions for a small bargaining unit in any case except for in acute care facilities, an employer arguing for a larger unit has the burden of showing that the larger unit shares an "overwhelming community of interest" with the employees included in the petitioned-for smaller unit. Thus, a showing by the employer that the employees in a petitioned-for unit could be placed in a larger unit is not enough, unless the employer can also show that employees in the larger unit demonstrate an "overwhelming community of interest" with those in the petitioned-for unit.

Because the Specialty Healthcare standard will be difficult for employers to meet, we expect unions may now engage in organizing numerous mini-bargaining units at a single site of employment in facilities other than acute care hospitals. Unions may also now attempt to organize smaller units in workplaces where they were previously unsuccessful because the majority of employees did not desire to be represented by unions.

All employers, even those outside of the healthcare industry, should take notice of this decision as the unit determination is likely to be applied to other industries. In the dissent, NLRB Member Brian Hayes stated: "Make no mistake about it. Today's decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board's jurisdiction." Id. at 15. Moreover, the dissent indicates that the majority in Specialty Healthcare "set the stage for erosion of the unit rule adopted in 1989 for acute care facilities" that prohibits the balkanization of hospital units beyond those provided in the NLRB's Health Care Rule. Id.