Sixth Circuit Approves NLRB Micro-Bargaining Units

On August 15, 2013, the Sixth Circuit Court of Appeals affirmed the National Labor Relations Board's (NLRB or the Board) controversial ruling in Specialty Healthcare, 357 NLRB No. 83 (2011), which has allowed the proliferation of what some term "micro-bargaining units." This decision makes it easier for unions to organize employees from all industries into smaller units than in the past and makes it challenging for employers to successfully challenge smaller bargaining units.

The Board's Specialty Healthcare decision overruled its decision in Park Manor Care Center, 305 NLRB 135 (1991), which set forth the Board's previous test for determining the appropriateness of a bargaining unit in non-acute healthcare facilities. Park Manor Care established a "pragmatic and empirical community of interest" approach that considered traditional community-of-interest factors, as well as evidence considered relevant by the Board during rulemaking concerning acute-care hospitals and the Board's prior experience involving the types of facilities in dispute or units sought. In Specialty Healthcare, the Board ruled that an employerclaiming that the proposed bargaining unit should include additional employees must be able to show that the excluded employees share an "overwhelming community of interest" with the employees in the proposed bargaining unit. Under Specialty Healthcare, numerous decisions have found small units appropriate that would not have been approved under previous Board law.

In Kindred Nursing Ctrs. E., LLC v. NLRB, Case No. 12-1027 (6th Cir. Aug. 15, 2013), the successor in interest to Specialty Healthcare's facility in Mobile, Alabama challenged the Board's ruling that a bargaining unit of Certified Nursing Assistants "constituted an appropriate unit." Pursuant to Specialty Healthcare, the Board had found a unit of fifty-three CNAs to be an appropriate bargaining unit, while Kindred Nursing argued that the bargaining units should have included an "additional eighty-six non-supervisory, non-professional service and maintenance employees." In its attack on the Specialty Healthcare decision, Kindred Nursing argued that the Board had abused its discretion because it

"adopt[ed] a new approach and [did] not return to applying the traditional community-of-interest approach; (2) [did] not 'reiterate and clarify' the law by adopting the overwhelming-community-of-interest test, but inappropriately imports this test from another area of labor law; (3)...