Board Gives Special Treatment to Union Organizing - Unions May Organize Piecemeal by Proliferating Small Units

In another thinly-veiled effort to open the floodgates to union victories in representation elections, the National Labor Relations Board’s three-member Democrat majority has overruled a long-standing standard for determining bargaining unit appropriateness in the non-acute health care industry. In Specialty Healthcare and Rehabilitation of Mobile, the majority of the Board ruled that a petitioned-for unit comprised solely of Certified Nursing Assistants was appropriate where the employees shared a “community of interest.” Although the Board has never previously approved a CNA-only unit, it has now found the job-based unit classification to be presumptively appropriate. It also held that, in order to overcome the presumption, a challenging party would bear the burden of proving that excluded employees shared an “overwhelming community of interest” with the employees in the petitioned-for unit. This constitutes a significant – and far-reaching – departure from the established law.

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