Overruling 20 years of precedence, the National Labor Relations Board (NLRB) has established a new standard for determining an appropriate bargaining unit in non-acute healthcare facilities (such as nursing homes). The impact of this decision likely will reach beyond the healthcare industry, however, because the Board also held that an employer who challenges a union's proposed bargaining unit as improperly excluding employees must show that the excluded employees share an "overwhelming" community of interest with the petitioned-for employees. The Board's decision may make it easier for unions to organize smaller units of employees, such as one department or even one job classification. According to dissenting Member Hayes, the decision "fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board's jurisdiction." See Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).

In this case, an NLRB Regional Director found that a bargaining unit of full-time and part-time Certified Nursing Assistants (CNAs) in a nursing home was appropriate. The employer filed a request for review, arguing that the only appropriate bargaining unit that included CNAs should also include all other nonprofessional service and maintenance employees at its facility in accordance with the standard set forth in the Board's 1991 decision in Park Manor Care Center. In Park Manor, the Board adopted a "pragmatic or empirical community of interest" test to determine appropriate bargaining units in non-acute healthcare facilities. Under this test, the Board considered both the traditional community of interest factor used in unit determinations in non-healthcare cases as well as other factors such as the type of unit sought or the type of health care facility in dispute.