In Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83, the National Labor Relations Board (NLRB) addressed whether a petitioned-for unit consisting only of certified nursing assistants (CNAs) was an appropriate collective bargaining unit under the law. The controversy arose because the union sought only to organize the CNAs and exclude other nonsupervisory and nonprofessional service and maintenance employees at the non-acute health care facility. The employer urged that the other employees such as resident activity assistants and cooks should also be included within any proposed unit because of a reported community of interest. Continuing its recent trend of favoring organized labor, the Board departed from and expressly overruled its previous standard established in Park Manor Care Center, 305 NLRB 872 (1991), and created a new standard to determine what constitutes an appropriate bargaining unit in a nonacute healthcare facility.

Previously, under Park Manor Care Center, when making the determination of a proposed bargaining unit and assessing a union’s desire to include certain groups of employees and exclude others at nonacute healthcare facilities, the Board inquired whether the interests of the group sought to be included are “sufficiently distinct from those of other employees” in order to exclude the other individuals. The Board limited the types of permissible bargaining units in such facilities to eight appropriate units. As a result, smaller units such as CNAs were deemed inappropriate.

However, in Specialty Healthcare the Board re-evaluated and overruled Park Manor and shifted the burden to employers to prove that the excluded employees share an “overwhelming community interest” with the petitioned-for employees. In overruling the Park Manor standard, the Board returned to an evaluation of nonacute facilities based on a traditional “community of interest” standard by assessing whether the bargaining units shared similar responsibilities, skills, training, supervisors, working conditions, and wages. Applying this newly articulated test, the Board held that CNAs clearly share a community interests and are unlike the Employer’s other employees. Consequently, the Board held that the CNAs constituted an appropriate unit.

While the potential sweeping impact of Specialty Healthcare remains to be seen, it certainly signals that employers may have even longer odds in successfully challenging what a union chooses to define as the appropriate bargaining unit; and it may likewise open the door for unions to more narrowly tailor those units around pro-union sentiment (seeking to organize, for example, only a fragment of the workforce in the hopes of establishing an initial toehold). Given that an employer’s ability to remain union-free may only extend to its weakest link (i.e., the most disgruntled segment of its workforce), re-doubled efforts on “employee sensing” and avoidance strategies become paramount.