NLRB's Kindred Nursing Centers decision upheld

The NLRB's decision in Specialty Healthcare II, 357 N.L.R.B. No. 83 (2011), reversed long-standing precedent (Park Manor Care Center, 305 NLRB 872 (1991)) and held that certified nursing assistants (CNAs) could be an appropriate, stand-alone bargaining unit. Healthcare employers dislike this approach because it results in the proliferation of bargaining units. Employers prefer fewer units. Unions prefer to be able to organize smaller units because that often makes organizing an easier task. The 6th Circuit has now unanimously upheld the NLRB's position. Kindred Nursing Centers v. NLRB (6th Cir 08/15/2013).

The employer, operating a nursing home and rehabilitation center (a non-acute healthcare facility), wanted to include other employees in the unit, including resident activity assistants, the social services assistant, the staffing coordinator, the maintenance assistant, and the central-supply clerk, cooks, dietary aides, a data-entry clerk, an office clerical, and a receptionist.

The employer argued that the NLRB abused its discretion because Specialty Healthcare II does the following four things: (1) adopts a new approach and does not return to applying the traditional community-of-interest approach; (2) does 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) violates section 9(c)(5) of the National Labor Relations Act in its application of the traditional community of interest test and adoption of the overwhelming-community-of-interest test; and (4) makes all of these changes through adjudication instead of rulemaking.

The court had little trouble rejecting each of these arguments, emphasizing that courts give the NLRB a lot of discretion in interpreting appropriate units and in interpreting the National Labor Relations Act.