In another last-minute move before the term of Chairwoman Wilma Liebman expired, the National Labor Relations Board (Board) issued a decision that sets forth a new approach for determining what constitutes an appropriate bargaining unit in health care facilities and industries other than acute care hospitals.

Under the National Labor Relations Act (Act), it is fundamental that the Board need only find an appropriate unit, not the most appropriate unit, but in the past, all groups of employees who had a community of interest were included in, not excluded from, the unit. In Specialty Healthcare and Rehabilitation Center of Mobile, the Regional Director found that a unit of Certified Nursing Assistants (CNAs) at a long-term care facility was an appropriate unit. The employer appealed, contending a unit that included CNAs, dietary, housekeeping, laundry and maintenance employees was the appropriate unit (which was typical in cases involving units at long-term care facilities). The Board, however, rejected the employer's appeal and found that a unit consisting solely of CNAs was appropriate, so it remanded the case to the Region to schedule an election.

The Board's decision addressed the issue of how narrowly an appropriate unit can be drawn by finding that a long-term care facility's CNAs may comprise an appropriate unit without including other non-professional employees. In coming to this conclusion, the Board overruled a 1991 decision that established a special test for bargaining unit determinations in nursing homes, rehabilitation centers and other non-acute health care facilities. Employees at these types of facilities will no longer be subject to any special test for determining the appropriate unit. Instead, the Board initially will apply the same "community of interest" standard the Board has applied in other industries. Under this standard, the Board will consider:

• Whether the employees are organized into a separate department;
• Have distinct skills, training and job functions and perform distinct work;
• Are functionally integrated with, have frequent contact with, and are integrated with other employees;
• Have distinct terms and conditions of employment; and
• Are separately supervised.

If this community of interest test is met, the Board will deem the petitioned-for unit to be an appropriate unit.

However, if an employer contends that a proposed unit inappropriately excludes certain employees, it now will have to demonstrate that the employees it seeks to include share "an overwhelming community of interest" with the employees in the proposed unit. This means that the employer must show that the "community of interest" factors "almost completely" overlap between the petitioned-for unit and the job classifications the employer seeks to add. The Board historically has only applied this standard in the context of determining whether employees should be accreted to an existing bargaining unit without the opportunity to exercise the right to vote for inclusion.

This decision is significant for employers in both health care and other industries. When the Board accepted this case for review, it publicly noticed a request for the employer and union involved, as well as any other interested parties, to submit briefs on all or some of eight different issues. Six of the issues involved the specific case and unit determinations in the non-acute health care industry. But two issues had nothing to do with the specific case, which fueled speculation that the Board would use this case as an opportunity to change the rules on bargaining unit determinations dramatically, by allowing for much smaller units, on narrower job classification lines, particularly since Board Member Becker has been a proponent of small job classification units.

Based on the language of the Board's Specialty Healthcare decision, it appears that this speculation was well-founded. By concluding that an employer must show an "overwhelming community of interest" in cases when it seeks to include other employees in the bargaining unit, the Board has established a framework that will make it significantly easier for unions to organize small bargaining units within a facility. As Board Member Hayes, a former management lawyer, said in dissent, this decision means the Board's regional offices "will have little option but to find almost any petitioned-for unit appropriate." Therefore, this changed standard could lead to multiple unions at one location and significant complications in employers' ability to operate their business.

Unions will likely be emboldened by this decision, and it may spark an increase in union organizing among discrete groups of employees, as unions are substantially more effective in organizing smaller bargaining units. If you have any questions about this decision or any issue involving union activity, consult with legal counsel.