On Sept. 2, 2013, this column prognosticated on the NLRB’s mission focus now that it had a full five member Board and noted that it would further refine the parameters of its bargaining unit standard under Specialty Healthcare II, amid criticisms from the management-side bar that it would lead to a proliferation of “micro” units. Recently, in Kindred Nursing Centers East, LP dba Kindred Transitional Care and Rehabilitation - Mobile v NLRB (Aug. 15, 2013), the 6th Circuit Court of Appeals upheld Specialty Healthcare II, denied the employer’s challenge to the appropriateness of the petitioned-for bargaining unit as found by the NLRB and granted enforcement of the board’s order directing the employer to recognize and bargain with the union as the exclusive bargaining representative of a unit of certified nurses’ assistants (CNAs).
In Specialty Healthcare II, the board addressed issues related to bargaining units in non-acute healthcare facilities, specifically, nursing homes. The Board overruled Park Manor Care Center, a test the board applied to determine the appropriateness of a bargaining unit in a nursing home; returned to applying the “traditional community-of-interest approach” to nursing homes; and placed the burden on the party contending that a readily identifiable group of employees who shared a community of interest was nevertheless inappropriate and that excluded employees shared an “overwhelming” community of interest with the included employees. Under this framework, it found the union’s petitioned-for unit of CNAs appropriate and rejected the employer’s contention that the unit must include certain employees from the maintenance department.