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AHCA, NCAL Kindred Spirits with Employer Appealing NLRB's Specialty Healthcare Decision

By Thomas V. Walsh

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  • May 1, 2012

On behalf of the American Health Care Association and the National Center for Assisted Living, Jackson Lewis submitted a “friend of the court” brief in support of a nursing home employer’s challenge to the National Labor Relations Board’s new standard for determining bargaining units.  Kindred Nursing Centers East f/k/a Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB, Nos. 12-1027/12-1174 (6th Cir.).  The brief was filed to assist the Sixth Circuit U.S. Court of Appeals in understanding the impact of the Board’s decision on nursing homes and assisted living facilities.


Part of the NLRB’s statutory mission is to determine the group of employees who will vote in a union representation election; the group that, if the union wins, would be the “bargaining unit” for purposes of contract negotiation. A union and an employer may have differing opinions as to what constitutes an appropriate bargaining unit. For many decades, the NLRB has determined the issue by analyzing and comparing the “community of interests” among various employee groups to make its determination. In Park Manor Care Center, 305 NLRB 872 (1991), the Board characterized this well-used standard as the “pragmatic community of interests” test. The Board took into consideration Congressional expressions of concern (echoed in earlier Board rulings) that unit determinations avoid a proliferation of bargaining units in long-term care facilities.  Park Manor resulted in no discernable change under the law.  Before and after that decision, the Board found broad service and maintenance bargaining units composed of various employee classifications to be appropriate bargaining units in long-term care facilities.

In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 174 (Aug. 26, 2011), the Board for the first time found that a unit requested by the union comprised solely of certified nursing assistants was appropriate, rejecting the employer’s request to add other non-professional employees to the unit.

In so doing, the Board, on its own initiative, overruled the community of interest test and announced a new standard for determining an appropriate bargaining unit.  Now, if the union seeks a unit of employees that is “readily identifiable as a group” (e.g., a unit of a single job classification) and those employees “share a community of interest” (which is highly likely), the Board will approve that unit, unless the employer can show that employees in a larger unit share an undefined “overwhelming community of interest” with the employees in the unit requested by the union.

Friend of the Court Arguments

In their brief, American Health Care Association and the National Center for Assisted Living (collectively, the “AHCA”) urge the Court to reject Specialty Healthcare.  It will jeopardize labor relations stability in the long-term care industry, lead to the proliferation of bargaining units, and could adversely affect patient care, the AHCA argues.  The AHCA further argues that Specialty Healthcare is inconsistent with the National Labor Relations Act (“NLRA”) and long-standing case law.

Jeopardizes Labor Relations Stability

The AHCA explains that the long-term care industry has moved to an interdisciplinary model for providing care that requires greater interaction among direct care providers and maintenance employees to meet acceptable treatment standards. The AHCA argues that the Board’s well-considered “community of interests” test and its application to uphold the industry’s use of service and maintenance units have led to stability in labor relations. 

Specialty Healthcare upsets this stability because it encourages the proliferation of small bargaining units.  These units are inconsistent with the industry’s integrated business and caregiving model, which is focused on servicing residents by multiple professional and non-professional caregivers, the AHCA exhorts.  As a result, Specialty Healthcare threatens to jeopardize residents’ care and other employees’ employment by job actions of single groups of employees.  Moreover, by fostering small units, Specialty Healthcare creates a likelihood of one workplace with multiple units, multiple contracts, and the potential for multiple labor disputes.

Inconsistent with NLRA and Case Law

The AHCA further contends that the new standard is inconsistent with the NLRA.  Section 9(b) requires the Board to decide each case in order to “assure employees the fullest freedom in exercising the rights guaranteed” by the statute.  Relying on a narrow “identifiable group” to define appropriateness does not assure “the fullest freedom” to employees — “employees” do not select the bargaining unit; rather, the union does.

Section 9(c) of the Act prohibits using the extent to which the union is successful in organizing employees as a controlling factor in making unit determinations.  However, under Specialty Healthcare, unions are encouraged to do just that — seek units limited to the extent the union has been successful in gaining employee interest.  Further, by allowing the union to have de facto control over determination of the unit, the Board abdicates its statutory responsibility to decide the appropriate bargaining unit. 

Because Specialty Healthcare failed to comply with the NLRA and applicable case law, the AHCA urges the Court to reject it.

Practice Pointer

If the Court upholds Specialty Healthcare, long-term care facilities can expect that unions will seek units consisting of employees in a single job classification.  However, by its own terms, this decision is not limited to the long-term care industry.  Specialty Healthcare applies to all industries.  This will make it easier for unions to win elections and likely will lead to a proliferation of bargaining units, multiple contracts, and job actions by multiple groups of employees.  Jackson Lewis will continue to monitor this case and report on any developments.  In the meantime, long-term care facilities should consult with their labor counsel to discuss this decision and strategies for minimizing its potentially damaging impact.

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