Sixth Circuit Upholds Board’s Decision In Specialty Healthcare

In the first judicial challenge to the NLRB's Specialty Healthcare decision, the U.S. Court of Appeals for the Sixth Circuit has upheld the Board.

In Specialty Healthcare the Board held that it will find a petitioned for unit appropriate where the unit is made up of (i) an identifialble group of employees (ii) who share a community of interest with one another. No othere employees could be added to the petitioned-for unit unless they shared an overwhelming community of interest with employees already included by the union. This opens the door for a multiplity of bargaining units in a single place of employment where, previously, all employees sharing a community of interest would likely have been included in a single unit. We have previously blogged about the Specialty Healthcare case and its impact here, here, here, here, and here.

In Kindred Nursing Centers East (f/k/a Specialty Healthcare) v. NLRB, __ F.3d __ (Nos. 12-1027/1174, August 15, 2013), the Sixth Circuit held that the Board has broad discretion when it comes to finding the appropriate bargaining unit, and that it must uphold a Board decision

'[U]nless the employer establishes that it is arbitrary, unreasonable, or an abuse of discretion.'. . . We review deferentially the Board's determination of appropriate bargaining units because '[t]he Board has wide discretion in determining the limit of an appropriate bargaining unit.' . . . We have even gone so far to say that '[n]ormally the Board exercises a discretion bordering on finality in determining the union appropriate for bargaining . . . .'

Slip op. at 9 (citations omitted).

The court addressed four principal arguments asserted by Kindred in support of its position that the new test for bargaining units articulated in Specialty Healthcare was an abuse of the Board's discretion.

First, Kindred argued that it was an abuse of discretion for the Board to depart from the existing and well-established community of interest standards of its prior precedent. However, the court stated that an agency may depart from its prior precedents, and provided that "'the departure . . . is explained, our review is limited to whether the rationale is so unreasonable as to be arbitrary and capricious.'" Slip op. at 10-11 (citations omitted). Here, the court ruled, because the Board "adopted a community-of-interest test based on some of the Board's prior precedents and . . . did explain its reasons for doing so, the Board did not abuse its...