In our January 10, 2011 Alert, Inch by Inch, Row by Row--NLRB Looks to Facilitate Organizing in Non-Acute Health Care Facilities, we advised you that the National Labor Relations 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 (CNAs) may comprise an appropriate bargaining unit without including other nonprofessional employees. In doing so, the Board overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”

The Board historically has taken a more flexible approach 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” (sometimes called “empirical”) community-of-interest 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.