NLRB continues on its mission to revamp labor law: Modifies standard for determining appropriate bargaining units in non-acute health care facilities

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In our January 10, 2011 alert, "Inch by Inch, Row by Row," we advised that the National Labor Relations Board (the Board) was re-evaluating how it determines an appropriate bargaining unit in non-acute health care facilities. In (Specialty Healthcare and Rehabilitation Center of Mobile), 357 NLRB No. 83 (Member Hayes dissenting…again), the Board found that Certified Nursing Assistants (CNA) may comprise an appropriate bargaining unit without including other nonprofessional employees. In doing so, the Board announced that it overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”

As discussed previously, the Board historically has taken a more flexible approach as to what constitutes an appropriate bargaining unit for unionization of non-acute health care facilities, opting to evaluate appropriate bargaining units on a case-by-case basis. See 29 CFR § 103.30(g). Under this case-by-case approach, the Board has typically applied a “pragmatic” or “empirical", “community-of-interests” standard, grouping employees by, among other things, similarity of wages and hours, extent of common supervision, frequency of contact with other employees, areas of practice, and patterns of bargaining in a non-acute care setting.

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