Specialty Healthcare and Rehabilitation Center of Mobile

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 934 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 83
934
Specialty Healthcare and Rehabilitation Center of
Mobile and United Steelworkers, District 9, Peti-
tioner. Case 15–RC–008773
August 26, 2011
DECISION ON REVIEW AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,
PEARCE, AND HAYES
I. INTRODUCTION
In this representation case, the Regional Director
found that a petitioned-for bargaining unit of certified
nursing assistants (CNAs) was appropriate under a tradi-
tional community-of-interest analysis. The Employer,
however, contended that the only appropriate unit con-
taining the CNAs consists of the CNAs plus all other
nonprofessional service and maintenance employees at
its facility. The Employer argued that the Regional Di-
rector failed to properly apply Park Manor Care Center,
305 NLRB 872 (1991), in which the Board addressed the
standard for determining units in nonacute health care
facilities in light of the Board’s adoption of a rule defin-
ing appropriate units in acute care hospitals. Because
this case raises important issues concerning the Board’s
determination of appropriate bargaining units, we invited
the parties and interested amici to file briefs addressing
the issues. See Specialty Healthcare & Rehabilitation
Center of Mobile, 356 NLRB 289 (2010).
After carefully considering the arguments of the par-
ties and interested amici, we have concluded that the
Park Manor approach to determining if a proposed bar-
gaining unit in a nursing home is an appropriate unit has
become obsolete, is not consistent with our statutory
charge, and has not provided clear guidance to interested
parties or the Board. We therefore overrule Park Manor
and return to the application of our traditional communi-
ty-of-interest approach in this context. In addition, we
reiterate and clarify that, in cases in which a party con-
tends that a petitioned-for unit containing employees
readily identifiable as a group who share a community of
interest is nevertheless inappropriate because it does not
contain additional employees, the burden is on the party
so contending to demonstrate that the excluded employ-
ees share an overwhelming community of interest with
the included employees.
II. BACKGROUND
On January 20, 2009, the Regional Director for Region
15 of the National Labor Relations Board issued a Deci-
sion and Direction of Election in this proceeding, finding
that the petitioned-for unit of full-time and regular part-
time CNAs at the Employer’s nursing home and rehabili-
tation facility constituted an appropriate unit in which to
conduct an election. Thereafter, in accordance with Sec-
tion 102.67 of the Board’s Rules and Regulations, the
Employer filed a timely request for review of the Re-
gional Director’s decision contending that the Regional
Director erred in finding the petitioned-for unit appropri-
ate. On February 19, 2009, the then two-member Board
granted the Employer’s Request for Review, and, on Au-
gust 27, 2010, the Board affirmed the grant of review.
On December 22, 2010, the Board issued a notice and
invitation to file briefs in this case to the parties as well
as the general public. 356 NLRB 289. The notice re-
quested that the parties and interested amici address is-
sues raised by the Regional Director’s finding that the
petitioned-for unit of CNAs at the Employer’s nursing
home is appropriate. The Board asked the parties and
amici to address the following questions:

(1) What has been their experience applying the
“pragmatic or empirical community of interests ap-
proach” of Park Manor and subsequent cases. (2)
What factual patterns have emerged in the various
types of nonacute health care facilities that illustrate
what units are typically appropriate. (3) In what way
has the application of Park Manor hindered or encour-
aged employee free choice and collective bargaining in
nonacute health care facilities. (4) How should the
rules for appropriate units in acute health care facilities
set forth in Section 103.30 be used in determining the
appropriateness of proposed units in nonacute health
care facilities. (5) Would the proposed unit of CNAs
be appropriate under Park Manor. (6) If such a unit is
not appropriate under Park Manor, should the Board
reconsider the test set forth in Park Manor. (7) Where
there is no history of collective bargaining, should the
Board hold that a unit of all employees performing the
same job at a single facility is presumptively appropri-
ate in nonacute health care facilities. Should such a
unit be presumptively appropriate as a general matter.
(8) Should the Board find a proposed unit appropriate
if, as found in American Cyanamid Co., 131 NLRB
909, 910 (1961), the employees in the proposed unit are
“readily identifiable as a group whose similarity of
function and skills create a community of interest.” [Id.,
slip op. at 1–2.]

Briefs in response to the Board’s invitation were filed
by a broad range of interested parties.1

1 The Employer and the Petitioner filed briefs, as did amici AFL–
CIO; Service Employees International Union (SEIU); International
Union of Operating Engineers (IUOE); American Health Care Associa-
tion and National Center for Assisted Living; American Hospital Asso-
ciation and American Society for Healthcare Human Resources Admin-
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 935
III. FACTS
The Employer operates a nursing home and rehabilita-
tion center in Mobile, Alabama. The Petitioner seeks to
represent a unit of 53 CNAs. The Employer contends
that the only appropriate unit consists of its approximate-
ly 86 nonsupervisory, nonprofessional service and
maintenance employees, including the CNAs.2 There is
no history of collective bargaining by any of the Em-
ployer’s employees.
The Employer’s facility, which the parties agree is a
nonacute health care facility, consists of four floors and
has beds for approximately 170 residents. The first floor
includes the kitchen and dining room; the recrea-
tion/activity room; administrative, business, and other
offices; the employee break room; supply and mainte-
nance rooms; and the lobby/reception area. The remain-
ing three floors are the nursing floors, each consisting of
residents’ rooms on two wings, a nursing station, a sun
porch/activity room, and a supply/storage room.
For organizational purposes, the nursing home’s em-
ployees are placed in one of eight separate departments:
nursing, nutrition services, resident activity, mainte-
nance, administration, medical records, central supply,
and social services. The facility’s executive director is
the highest-ranking management official on site. The
nursing director and business office manager report to
the executive director. The individual heads of all but
one department report to the nursing director, as do the
staffing coordinator, the medical records clerk, and the
data entry clerk.
A. CNAs
The nursing department consists of the 53 CNAs and
the LPNs and RNs. The CNAs are directly supervised
by LPNs on each nursing wing who have been designat-
ed as charge nurses. LPNs in turn are supervised by RNs
designated as unit managers, who report to the nursing

istration; Chamber of Commerce of the United States; Senators Mi-
chael Enzi, Ranking Member, Committee on Health, Education, Labor
and Pensions (HELP), Orrin Hatch, Ranking Member, Committee on
Finance, and Johnny Isakson, Ranking Member, HELP Subcommittee
on Employment and Workplace Safety; Coalition for a Democratic
Workplace and Human Resources Policy Association; International
Foodservice Distributors Association; Retail Industry Leaders Associa-
tion; Georgia Chamber of Commerce; National Association of Water-
front Employers; and Douglas Motter (an individual).
2 The Employer’s registered nurses (RNs) and licensed practical
nurses (LPNs) are not at issue here. The parties stipulated that LPNs
should be excluded from any unit found appropriate because they are
supervisors. No party seeks to include RNs, and the Regional Director
excluded them from the unit based on her finding that RNs supervise
LPNs. As laundry and housekeeping employees and speech, occupa-
tional, and physical therapists working at the facility are not directly
employed by the Employer, their unit placement is not at issue in this
proceeding.
director. CNAs work one of three 8-hour shifts and work
directly with up to 17 residents each. There are typically
three to five CNAs assigned to work on each nursing
floor, and each CNA is usually assigned to work in a
particular area of the nursing floor. CNAs assist resi-
dents with such daily functions as grooming, oral hy-
giene, bathing and dressing, and incontinence care.
CNAs obtain food trays for residents who have their
meals on the nursing floor and assist these residents with
eating. CNAs turn and lift residents in their beds, move
residents to their wheelchairs, assist with ambulation for
short distances, and assist residents in getting around the
facility, such as to a sun porch or to the dining room.
CNAs also accompany residents to appointments outside
the nursing home. CNAs take residents’ vital signs and
monitor their daily food and fluid intake and output.
CNAs complete an “Activities for Daily Living” flow
sheet on which they record residents’ vital signs and dai-
ly functions and activities, such as bathing, dressing, and
walking. CNAs also make note of the services and ther-
apies that residents receive on their medical charts, and
they document residents’ progress or lack thereof. CNAs
are the only employees other than RNs and LPNs who
are certified or licensed to provide certain aspects of res-
idents’ care, such as feeding and positioning.
The Employer has designated several CNAs as “re-
storative CNAs.” These CNAs assist residents in thera-
peutic programs designed to maintain functions such as
walking and eating or to increase residents’ range of mo-
tion. Restorative CNAs also assist residents with their
meals in the dining room and transport residents back to
their rooms after therapeutic activities or meals.
Upon admittance to the Employer’s facility, a new res-
ident is assessed by an interdisciplinary team of employ-
ees from the nursing, nutrition services, resident activity,
and social services departments to determine the resi-
dent’s medical, dietary, and social needs. CNAs attend
these meetings and provide input in the formulation of
individual residents’ care plans. CNAs may attend addi-
tional meetings of the interdisciplinary team if a resi-
dent’s care plan needs to be modified as the resident’s
condition or needs change over time. CNAs also attend
in-service training sessions.
CNAs retrieve food carts from the first floor kitchen
and take them to their assigned nursing floors for resi-
dents who eat meals in their rooms or on their floor’s sun
porch. CNAs may be asked to contact the central supply
clerk if there is a shortage of necessary supplies on the
floor, and the clerk may contact a CNA if the clerk has a
question about specific items that a resident under that
CNA’s care may need. CNAs may be contacted by the
social services assistant to get certain information about a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
resident, for example, whether the resident met with a
particular doctor.
The Employer prefers that its CNAs have a high
school diploma. CNAs must be certified by the State of
Alabama; certification requires that an individual com-
plete 16 hours of classroom training and 72 hours of gen-
eral education. The certification course includes the
basic components of caring for geriatric and incapacitat-
ed patients, such as bathing, dressing, feeding, and the
like. CNAs are required to attend specialized training on
a periodic basis to maintain their certification.
The starting wage for CNAs is $8.50 per hour, and
they may receive an additional 10 cents per hour for each
year of experience up to 15 years. CNAs receive time
and a half for overtime work. CNAs’ immediate super-
visors evaluate CNAs annually; the evaluation provides
the basis for a possible pay increase, typically 3 percent,
that must be approved by the nursing home’s executive
director.3 CNAs wear the same uniform that LPNs and
RNs wear. It does not appear that any employees occu-
pying other classifications have transferred into a CNA
position, although there is evidence that one CNA trans-
ferred to a unit clerk position.
B. Other Employees
The Employer would include in the bargaining unit
with the CNAs approximately 33 other employees whom
the Employer considers to be service and maintenance
employees. These employees include resident activity
assistants, who design and lead individual and group
recreational activities, such as games and crafts, and ar-
range pet, art, and music therapy; the social services as-
sistant, who works with residents and their families to
identify residents’ needs and to resolve problems as they
arise; the staffing coordinator, who prepares work sched-
ules for the nursing staff, contacts replacement personnel
as necessary, and determines which CNA will accompa-
ny a resident to an appointment outside the facility; the
maintenance assistant, who performs routine mainte-
nance, upkeep, and repair services on the building,
grounds, and equipment; and the central supply clerk,
who maintains an inventory of items used by each resi-
dent, and orders, receives, and stocks supplies.
The Employer would also include cooks, who prepare
meals for residents; dietary aides, who assist cooks and
deliver prepared food to the dining room or the nursing
floors; the medical records clerk, who creates and main-
tains residents’ medical records and prepares corre-
spondence and reports; the data entry clerk, who inputs

3 Annual merit increases may be as much as 5 percent, but they may
be lower than 3 percent if there are problems with a CNA’s job perfor-
mance.
into the Employer’s electronic records system residents’
care plans, physicians’ orders, resident cash logs and
financial charges, and other resident information; a busi-
ness office clerical; and a receptionist.4
In general, the employees whom the Employer would
include in the unit report to the managers of their respec-
tive departments. The managers of all but one of these
departments report directly to the director of nursing.
None of the other employees are in the nursing depart-
ment and therefore none report to the RNs. Most of the
classifications the Employer would add to the unit have
similar educational requirements. For example, cooks
and dietary aides must have completed the 10th grade,5
while employees in the remaining classifications must
have a high school degree or its equivalent.6 All em-
ployees complete the same employment application, go
through the same hiring process, are required to pass a
drug test, and receive the same new employee orienta-
tion.
The Employer’s normal business hours are 8 a.m. to
4:30 p.m. Cooks and dietary aides typically work either
of two shifts to cover the three daily meals, with the first
shift starting at 5–6 a.m. and covering breakfast and
lunch, and the later shift covering lunch and dinner. One
activity assistant works normal business hours, while the
other staggers her time to accommodate residents’ after-
dinner activities, which can run as late as 8 p.m. The
maintenance assistant works 7 a.m. to 3 p.m. None of
the other employees staff the three 8-hour shifts worked
by the CNAs. All employees are hourly and paid on a
biweekly basis. The starting wage rates are $7 per hour
for dietary aides; $9 for cooks and the receptionist; $10
for the central supply and medical records clerks and the
staffing coordinator; and $15 for the data entry clerk.
Like the CNAs, these employees receive annual evalu-
ations under the same appraisal system and are eligible
for a wage increase based on a favorable evaluation. All
employees are eligible for the same benefits, such as
health and life insurance, retirement and profit-sharing
plans, sick leave/vacations, tuition reimbursement, and
performance-based special awards programs; are subject
to the same personnel policies and receive the same em-
ployee handbook; may purchase meals in the dining
room at the same prices; wear name badges; use the same
parking lot, timeclock, break room, smoking area, and

4 The record contains virtually no information about the business of-
fice clerical or the receptionist.
5 Cooks must have a ServeSafe Food Safety Certification from the
State. This certification can be obtained by successfully completing a
course taught by the local health department.
6 Activities assistants typically have only a high school diploma even
though the job description states that the position requires a bachelor’s
degree.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 937
bulletin boards; attend regular monthly meetings as well
as occasional group meetings and in-service training ses-
sions; and are invited to attend the annual holiday party
and other social functions. Dietary aides and the mainte-
nance assistant wear uniforms, but the uniform is differ-
ent from the one worn by CNAs, LPNs, and RNs.
IV. ANALYSIS
We begin our analysis with the Employer’s argument
resting on Park Manor. After concluding that Park
Manor should be overruled, we turn to the general prin-
ciples that guide the Board’s determination of whether a
proposed unit is appropriate and, specifically, the ques-
tion of how those principles apply when the employer
contends that the smallest appropriate unit contains em-
ployees not included in the petitioned-for unit.
A. Park Manor
The Employer and its supporting amici do not question
the Regional Director’s finding that the CNAs share a
community of interest with each other. In other words,
no party or amicus suggests that the CNAs’ terms and
conditions of employment are too varied for them to be
grouped together in the same unit. Nor would such a
suggestion be credible given the facts described above.
Rather than arguing that the CNAs do not share a com-
munity of interest with each other, the Employer and its
supporting amici argue that the smallest appropriate unit
containing the CNAs is an overall service and mainte-
nance unit. The Employer bases its argument on the
Board’s decision in Park Manor.
The Board’s decision in Park Manor must be under-
stood within the context of the 1974 health care amend-
ments to the NLRA; the resulting controversy about the
amendments’ implications for unit determination in acute
care hospitals; the Board’s effort to resolve that contro-
versy through rulemaking; and the Supreme Court’s de-
cision in American Hospital Assn., 499 U.S. 606 (1991),
which upheld the Board rule and clarified the legal im-
port of statements in the legislative history of the 1974
amendments concerning undue fragmentation of bargain-
ing units.
Nursing homes have been subject to the Board’s juris-
diction since the adoption of the NLRA in 1935. The
1974 amendments extended the coverage of the Act to
nonprofit hospitals (which had been exempted by the
1947 amendments). In extending the Act’s coverage to
such hospitals, Congress also amended the Act to tailor
certain of its provisions specifically to the health care
industry, for example, requiring that labor organizations
provide 10 days’ notice before initiating a strike among
health care employees. 29 U.S.C. § 158(g). As the Su-
preme Court has recognized, however, the 1974 amend-
ments “made no change in the Board’s authority to de-
termine the appropriate bargaining unit in each case.”
American Hospital Assn., 499 U.S. at 615.
Nevertheless, following the amendments, health care
employers, in litigation under the NLRA, pointed to the
following statement in both the Senate and House Re-
ports on the amendments:

Due consideration should be given by the Board to
preventing proliferation of bargaining units in the
health care industry. In this connection, the Committee
notes with approval the recent Board decisions in Four
Seasons Nursing Center, 208 NLRB [403] (1974), and
Woodland Park Hospital, 205 NLRB [888] (1973), as
well as the trend toward broader units enunciated in Ex-
tendicare of West Virginia, [d/b/a St. Luke’s Hospital],
203 NLRB [1232] (1973).

S. Rep. No. 766, 93rd Cong., 2d Sess. 5 (1974); H.R. Rep.
No. 1051, 93rd Cong., 2d Sess. 7 (1974) (footnote omit-
ted).7
In American Hospital Assn., supra, however, the Su-
preme Court made clear that the statements in the com-
mittee reports are not binding on the Board: “Petitioner
does not—and obviously could not—contend that this
statement in the Committee Reports has the force of
law.” 499 U.S. at 616. Indeed, the Court observed that
“legislative history that cannot be tied to the enactment
of specific statutory language ordinarily carries little
weight in judicial interpretation of the statute.” Id. at 617
(citing Public Employees Retirement System of Ohio v.
Betts, 492 U.S. 158, 168 (1989)). Rather, the Court
characterized the reports’ statement as an “admonition,”
noting that “[i]f Congress believes that the Board has not
given ‘due consideration’ to the issue, Congress may
fashion an appropriate response.” Id. As the District of
Columbia Circuit had observed earlier, “Congress, in the
final analysis, decided against modifying [S]ection 9 of
the Act” and the courts and the Board have “no authority

7 The statements in the Committee Reports were elaborated upon on
the floor by key legislators, see 120 Cong. Rec. 12944-45 (statement of
Senator Taft, May 2, 1974); 13559-60 (statement of Senator Taft, May
7, 1974); 22575 (Statement of Senator Williams, July 10, 1974); 22949
(statement of Representative Ashbrook, July 11, 1974), although Sena-
tor Harrison Williams, Chairman of the Committee on Labor and Pub-
lic Welfare and a chief sponsor of the amendments, observed that the
admonition concerning proliferation was intended to leave the determi-
nation of appropriate units within the Board’s broad discretion:
While the committee clearly intends that the Board give due consider-
ation to its admonition to avoid an undue proliferation of units in the
health care industry, it did not within this framework intend to pre-
clude the Board acting in the public interest from exercising its spe-
cialized experience and expert knowledge in determining appropriate
bargaining units.
Id. at 22575.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
to enforce alleged principles gleaned solely from legisla-
tive history that has no statutory reference point.” Elec-
trical Workers Local 474 v. NLRB, 814 F.2d 697, 699,
700 (D.C. Cir. 1987) (emphasis in original).8 The Act
thus provides no basis for defining appropriate units in
the health care industry using different criteria than are
applied in other industries.9
Nevertheless, after the passage of the 1974 amend-
ments and before the Supreme Court’s decision in Amer-
ican Hospital Assn., uncertainty about the import of the
“admonition” in the legislative history led to serious dis-
agreement among Board Members and between the
Board and several courts of appeals concerning appropri-
ate bargaining units in acute care hospitals. The Board
sought to resolve this disagreement by exercising its
rulemaking authority. Effective May 22, 1989, the
Board adopted a rule defining eight appropriate units in
acute care hospitals and providing that all other units are
inappropriate absent “extraordinary circumstances.” 54
Fed. Reg. 6336-01 (1989). The rule has generally been
understood to place CNAs working in acute care hospi-
tals in a unit including all nonprofessional service and
maintenance employees. See 29 CFR § 103.30(a)(8);
Rhode Island Hospital, 313 NLRB 343 (1993) (parties
stipulated to nursing assistants’ inclusion in “nonprofes-
sional” unit).
For our purposes here, the critical fact about the
Board’s acute care hospital unit rule is that by its express
terms it does not apply to this case or to nursing homes
generally, and no party contends otherwise. Only “acute
care hospitals” are covered, and the definition of acute
care hospitals expressly excludes “facilities that are pri-
marily nursing homes.” The rule also expressly provides
that “[t]he Board will determine appropriate units in oth-
er health care facilities . . . by adjudication.” 29 CFR. §§
103.30(a), (f)(2), and (g). The rule does not apply to
nursing homes because, after conducting considerable
factfinding, the Board concluded that there were “sub-

8 The courts of appeals as well as the Board have applied this princi-
ple to other aspects of the legislative history of the health care amend-
ments. See, e.g., Beverly Health & Rehabilitation Services v. NLRB,
317 F.3d 316, 320–321 (D.C. Cir. 2003) (rejecting the Board’s reliance
in Greater New Orleans Artificial Kidney Center, 240 NLRB 432
(1979), on similar statements in the committee reports providing that a
labor organization could extend the notice time and date of a strike
among employees of a health care employer by up to 72 hours without
providing a new 10-day notice); Alexandria Clinic, P.A., 339 NLRB
1262 (2003) (expressly overruling Greater New Orleans with regard to
the Board’s reliance on legislative history where statutory language was
clear), enfd. sub nom. Minnesota Licensed Practical Nurses Assn. v.
NLRB, 406 F.3d 1020 (8th Cir. 2005).
9 Those traditional criteria are, however, as explained infra at fn. 19,
directly tied to how particular employers have structured their work-
places and are thus acutely sensitive to differences among industries.
stantial differences between nursing homes and hospitals
. . . which affect staffing patterns and duties.” 53 Fed.
Reg. 33928 (1988).
While the Employer and its supporting amici concede
that the acute care hospital rule does not by its terms ap-
ply here, they argue that the Board’s decision in Park
Manor nevertheless requires that the rule be applied.
The petitioning Union and its supporting amici argue the
opposite. That alone suggests that our decision in Park
Manor has done little to provide interested parties with
guidance in defining appropriate units in the long-term
care industry.10 For that reason, as well as those detailed
below, we have decided to overrule Park Manor and to
apply our traditional community-of-interest standards in
this case and others like it.
The Board in Park Manor rejected both an extension
of the acute care hospital rule beyond its express terms
and the formulation of a similar rule applicable to nurs-
ing homes. Yet the Board also rejected use of our tradi-
tional community-of-interest approach. Rather, the
Board remanded the case to the regional director “for
further consideration that takes account of (1) what was
learned about nursing homes, LPNs, and technicals gen-
erally in the rulemaking proceeding that led to the
Board’s Rule governing units in acute care hospitals, and
(2) Board cases involving nursing home units issued pri-
or to the rulemaking.” 305 NLRB at 874.
While we consider both of those factors here, we are
persuaded that it is no longer sound policy to focus on a
rulemaking record created over two decades ago con-
cerning a highly dynamic industry and on cases decided
even earlier. In fact, even 22 years ago, the Board
acknowledged in its Notices of Proposed Rulemaking
and Final Rule that the “nursing home industry is . . . in a
period of rapid transition” and that “our information as to
nursing homes was limited.” 53 Fed. Reg. 33928; 54
Fed. Reg. 16343. It makes even less sense to rely heavi-
ly on that record today, when it was recognized at the
time it was created that it was “limited” and did not pro-
vide an adequate basis for the Board to reach any conclu-
sions concerning bargaining units in nursing homes.
Perhaps for this reason, the Board’s attempt to capture
its novel approach in Park Manor in terms interested
parties could understand and apply fell short. The Board
stated:

we do not choose at this time to substitute for either
“disparity of interests” or “community of interests” yet

10 Our dissenting colleague argues that Park Manor has provided
clear guidance yet provides no explanation of what the decision means
other than that the Board should apply the acute care hospital rules
beyond their express terms.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 939
another short-hand phrase by which units in all nursing
homes or other nonacute care facilities will be meas-
ured. Instead, we prefer to take a broader approach uti-
lizing not only “community of interests” factors but al-
so background information gathered during rulemaking
and prior precedent. Thus, as more fully set forth be-
low, our consideration will include those factors con-
sidered relevant by the Board in its rulemaking pro-
ceedings, the evidence presented during rulemaking
with respect to units in acute care hospitals, as well as
prior cases involving either the type of unit sought or
the particular type of health care facility in dispute.

Park Manor, 305 NLRB at 875 (footnotes omitted). The
Board then noted, “[f]or those most comfortable with verbal
formulas, perhaps this might be referred to as the ‘pragmatic
or empirical community of interests’ approach.” Id. at fn.
16.
Looking at that formulation now, with hindsight, we
think that “those factors considered relevant by the Board
in its rulemaking proceedings” were not sufficiently
identified to provide meaningful guidance. Moreover,
although “prior cases involving either the type of unit
sought or the particular type of health care facility in
dispute” must, of course, be considered as always,11
many Board and court decisions in this area issued prior
to the Supreme Court’s decision in American Hospital
Assn. are of questionable continued validity. See Cali-
fornia Pacific Medical Center v. NLRB, 87 F.3d 304,
308–310 (9th Cir. 1996) (reviewing various courts’
changed approaches after American Hospital Assn. in
course of rejecting employer’s contention that “disparity
of interests” test should apply, rather than single-facility
presumption), enfg. Children’s Hospital of San Francis-
co, 312 NLRB 920 (1993). Ultimately, we are simply
unable to understand how a “‘pragmatic or empirical
community of interests’ approach” differs meaningfully
from our traditional community-of-interest approach.
The traditional community-of-interest test is intended, as
the Act requires, to assure employees the “fullest free-
dom in exercising the rights guaranteed by th[e] Act,” 29
U.S.C. § 159(b), rather than to satisfy an abstract notion

11 However, understanding the unique nature of the statutory stand-
ard, which requires only that the proposed unit be an appropriate unit,
is critical to properly applying prior precedent to determine if a pro-
posed unit is an appropriate unit. Prior precedent holding a unit similar
to a proposed unit to be appropriate in a similar setting is persuasive,
but prior precedent holding a different unit to be appropriate in a similar
setting is not persuasive. See Overnite Transportation Co., 322 NLRB
723, 724 (1996). Too often, parties in representation proceedings mis-
understand this aspect of the statutory standard. They mistakenly cite
prior cases holding that a particular unit is appropriate as support for
the proposition that a different proposed unit must be inappropriate.
We reiterate today that such a conclusion does not follow.
of the most appropriate unit, and is thus pragmatic. In
addition, it has always been informed by empirical
knowledge acquired by the Board about the industry and
workplace at issue. The approach suggested in Park
Manor has actually led in the opposite direction because,
rather than directing attention to the facts in the particular
case and those concerning the industry as it exists at pre-
sent, it proposes a backward-looking standard using facts
and analysis already over two decades out of date. This
approach is both confusing and misguided.
After setting forth the above-described factors to con-
sider, the Park Manor Board quoted with approval the
following statement from the second Notice of Proposed
Rulemaking (NPRM) leading to the acute care hospital
unit rule:

[I]n exercising its discretion to determine appropriate
units, the Board must steer a careful course between
two undesirable extremes: If the unit is too large, it may
be difficult to organize, and, when organized, will con-
tain too diversified a constituency which may generate
conflicts of interest and dissatisfaction among constitu-
ent groups, making it difficult for the union to repre-
sent; on the other hand, if the unit is too small, it may
be costly for the employer to deal with because of repe-
titious bargaining and/or frequent strikes, jurisdictional
disputes and wage whipsawing, and may even be dele-
terious for the union by too severely limiting its con-
stituency and hence its bargaining strength. [Footnote
omitted.] The Board’s goal is to find a middle-ground
position, to allocate power between labor and manage-
ment by “striking the balance” in the appropriate place,
with units that are neither too large nor too small.

Park Manor, 305 NLRB at 876 (quoting 53 Fed. Reg.
33904).12 In our view, Congress itself struck the appropri-

12 Neither the NPRM nor the Park Manor Board cited prior Board
decisions as endorsing, applying, or otherwise illustrating these princi-
ples. Nor were the principles derived from the rulemaking record or
other empirical evidence. Rather, the NPRM cited as authority two
legal treatises: Robert A. Gorman, Basic Text on Labor Law 66–69
(1976), and John E. Abodeely, Randi C. Hammer & Andrew L. Sander,
The NLRB and the Appropriate Bargaining Unit 12–13 (rev. ed. 1981).
The NPRM also cited a decision of the United States Court of Appeals
for the Seventh Circuit: NLRB v. Hillview Health Care Center, 705
F.2d 1461, 1469–1470 (7th Cir. 1983).
In Hillview Health, which involved a nursing home, the Seventh
Circuit upheld the Board’s determination that a bargaining unit consist-
ing solely of seven LPNs—and excluding “nurse’s aides and other
low—level workers”—was appropriate. 705 F.2d at 1469–1470. As to
the appropriate “balance,” the Seventh Circuit observed:
The statute gives little guidance to the Board on where to strike the
balance but does suggest that any tilt should be in favor of unions.
Section 9(b) of the Act, 29 U.S.C. § 159(b), requires the Board to “de-
cide in each case whether, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this subchapter, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
ate balance in adopting and amending Section 9 of the Act.
Our determination of whether a proposed unit is an appro-
priate unit must be guided by the principles of unit determi-
nation drawn from the language of the statute, which we
review below.13
As read by the Employer and its supporting amici,
Park Manor holds that there is only one set of appropri-
ate units in nursing homes and similar facilities.14 As
amici American Hospital Association and American So-
ciety for Healthcare Human Resources Administration
acknowledge, “[a]s a practical matter, under Park Man-
or’s ‘pragmatic or empirical community of interests ap-
proach,’ the Board generally has found appropriate at
nonacute care facilities only those units that would be
appropriate at acute care hospitals,” i.e., only one set of
appropriate units. Brief at 16 (emphasis added). In other
words, the Employer and its supporting amici would
have the Board require that all employees in all nursing
homes and other nonacute care facilities be limited to
seeking representation in a single set of units. But the
suggestion that there is only one set of appropriate units
in an industry runs counter to the statutory language and
the main corpus of our unit jurisprudence, which holds
that the Board need find only that the proposed unit is an
appropriate unit, rather than the most appropriate unit,
and that there may be multiple sets of appropriate units in
any workplace. See infra at slip op. at 8–9.15 Accepting

unit appropriate for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision thereof. . . .” (Em-
phasis added.) . . . Consistently with the statutory slant, the Board’s
unit determinations emphasize homogeneity (“community of inter-
est”) rather than the adverse effect of multiple units on the employer.
Id. at 1469 (citation omitted).
13 Our dissenting colleague embraces this balancing approach, but
does not suggest what metrics the Board should use in weighing the
parties’ interests, how it provides clear guidance to interested parties, or
where in the Act Congress authorized such an unrestrained exercise of
authority on the part of the Board.
14 Notably, the Board in Park Manor expressly disclaimed such an
intention: “[W]e do not have a sufficient body of empirical data as to
nursing homes to make a uniform rule as to them at this time, and per-
haps never will because we are not sure that all are sufficiently uniform
to warrant finding the same units appropriate for all.” Id. at 875.
15 Of course, the acute care hospital unit rule represents an exception
to the foregoing analysis, but it emerged out of unique circumstances:
the existence of “lengthy and costly litigation over the issue of appro-
priate bargaining units in each case.” 54 Fed. Reg. 16336 (1989).
Those circumstances did not extend to nursing homes. See 53 Fed.
Reg. 33928–33929 (1988) (“decid[ing] to exclude nursing homes from
the rule” partly because “there is no need at this time for a rule with
respect to nursing homes as there has been no prolonged litigation and
no party has expressed any problems in this area.” Moreover, the acute
care hospital unit rule was adopted prior to the Supreme Court’s author-
itative pronouncement on the weight to be accorded the legislative
history concerning undue proliferation. While the dissent suggests that
doctrinal evolution in this area should proceed via rulemaking, we note
that Park Manor was a Board decision and that all the other principles
the Employer’s position “would stand on its head the
statutory concept of an appropriate unit.” Overnite, 322
NLRB at 725.
The Act itself does create a set of presumptively ap-
propriate bargaining units16 and the Board has created
other such presumptions.17 Indeed, the Board has specif-
ically recognized that certain of the units defined for
acute care hospitals in the rules, including the service and
maintenance unit, are presumptively appropriate in nurs-
ing homes, and we continue to adhere to that principle
and those holdings. See Jersey Shore Nursing & Reha-
bilitation Center, 325 NLRB 603, 603 (1998) (service
and maintenance unit “appropriate on its face”). See also
Marian Manor for the Aged & Infirm, Inc., 333 NLRB
1084, 1094 (2001) (service and maintenance unit “is pre-
sumptively appropriate”); Hebrew Home & Hospital,
311 NLRB 1400 (1993) (skilled maintenance unit);
Hillhaven Convalescent Center, 318 NLRB 1017 (1995)
(service and maintenance unit). But the Employer sug-
gests not that Park Manor creates a presumption that the
units defined in the rule are appropriate in nonacute care
facilities, but that Park Manor holds that those units are
the only appropriate units absent exceptional circum-
stances.
The Employer’s suggestion is at odds with our unit ju-
risprudence. A party petitioning for a unit other than a
presumptively appropriate unit (when one exists, as it
does here) bears no heightened burden to show that the
petitioned-for unit is also an appropriate unit. The exist-
ing presumptions are thus consistent with the statutory
requirement that the proposed unit need only be an ap-
propriate unit, because they merely shift the burden to
the party arguing that a petitioned-for and presumptively
appropriate unit is inappropriate. In contrast, the Em-
ployer and its supporting amici read Park Manor to cre-

we apply here were established via adjudication. Indeed, even in the
acute care hospital rulemaking proceeding, the Board concluded that it
should proceed via adjudication outside that limited context.
16 The Act provides that the Board shall decide whether “the unit ap-
propriate for purposes of collective bargaining shall be the employer
unit, craft unit, plant unit, or subdivision thereof.” 29 U.S.C. § 159(b).
Based on this statutory language, the Board has held that units consist-
ing of all employees of an employer, all employees in a particular craft,
or all employees at a particular plant are presumptively appropriate.
See, e.g., Greenhorne & O’Mara, Inc., 326 NLRB 514, 517 (1998)
(petitioned-for employerwide unit is presumptively appropriate);
Mallinckrodt Chemical Works, 162 NLRB 387 (1966) (setting forth
factors for determining when craftwide unit is appropriate); Hilander
Foods, 348 NLRB 1200, 1200 (2006) (“single-facility unit is presump-
tively appropriate”).
17 See, e.g., Groendyke Transport, 171 NLRB 997, 998 (1968) (sin-
gle-terminal units are presumptively appropriate regarding drivers); cf.
Colorado Interstate Gas Co., 202 NLRB 847, 848–849 (1973) (sys-
temwide units are “optimal” for public utilities, and Board “is reluctant
to fragmentize them, absent compelling circumstances”).
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 941
ate the opposite of presumptively appropriate units: an
entire set of conclusively or nearly conclusively inappro-
priate units in the subacute care hospital health care in-
dustry.
The Employer’s argument based on Park Manor thus
runs counter to the Supreme Court’s observation that the
“[w]ide variations in the forms of employee self-
organization and the complexities of modern industrial
organization make difficult the use of inflexible rules as
the test of an appropriate unit. Congress was informed of
the need for flexibility in shaping the unit to the particu-
lar case and accordingly gave the Board wide discretion
in the matter.” NLRB v. Hearst Publications, Inc., 322
U.S. 111 (1944) (footnote omitted). Indeed, the Court
has further observed, “[t]he issue as to what unit is ap-
propriate for bargaining is one for which no absolute rule
of law is laid down by statute, and none should be by
decision.” Packard Motor Car Co. v. NLRB, 330 U.S.
485, 491 (1947). Thus, determination of whether a pro-
posed unit is an appropriate unit requires “examination of
the facts of each case” and cannot be based on “conclu-
sory rationales.” NLRB v. Yeshiva University, 444 U.S.
672, 691 (1980).
For all these reasons, we have determined that continu-
ing to apply Park Manor is not consistent with our statu-
tory charge, that Park Manor’s approach has become
obsolete, and that Park Manor failed to provide clear
guidance to interested parties or the Board. We therefore
overrule Park Manor and return to the application of
traditional community-of-interest considerations in de-
termining if a proposed unit is an appropriate unit in
nonacute health care facilities.
B. Application of the Traditional Principles
of Unit Determination
Having decided to no longer follow Park Manor’s idi-
osyncratic approach, and instead to apply the Board’s
traditional approach in cases involving long-term care
facilities, we begin with the language of the Act.
As the Supreme Court has recognized, Section 9(a),
“read in light of the policy of the Act, implies that the
initiative in selecting an appropriate unit resides with the
employees.” American Hospital Assn., 499 U.S. at 610.
The Act does not specify the unit within which employ-
ees must organize for purposes of collective bargaining.
Rather, it provides for the filing of a petition seeking an
election in a specified unit. Section 9(c)(1)(A) provides
for the filing of a petition “by an employee or group of
employees or any individual or labor organization acting
in their behalf alleging that a substantial number of em-
ployees (i) wish to be represented for collective bargain-
ing.” The Board has construed that statutory first step in
the representation case process to permit the petitioner to
describe the unit within which “a substantial number of
employees . . . wish to be represented.”
Procedurally, the Board examines the petitioned-for
unit first. If that unit is an appropriate unit, the Board
proceeds no further. As the Board recently explained,
“the Board looks first to the unit sought by the petitioner,
and if it is an appropriate unit, the Board’s inquiry ends.”
Wheeling Island Gaming, Inc., 355 NLRB 637, 637 fn. 2
(2010). See also Boeing Co., 337 NLRB 152, 153
(2001). Here, of course, the employees have proposed a
unit consisting of a set of employees who are clearly
identifiable as a group: all employees in the CNA classi-
fication.
The Act further declares in Section 9(b) that “[t]he
Board shall decide in each case whether, in order to as-
sure to employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer
unit, craft unit, plant unit, or subdivision thereof.” The
first and central right set forth in Section 7 of the Act is
employees’ “right to self-organization.” As the Board
has observed, “Section 9(b) of the Act directs the Board
to make appropriate unit determinations which will ‘as-
sure to employees the fullest freedom in exercising rights
guaranteed by this Act.’ i.e., the rights of self-organi-
zation and collective bargaining.” Federal Electric
Corp., 157 NLRB 1130, 1132 (1966).18
The Board has historically honored this statutory
command by holding that the petitioner’s desire concern-
ing the unit “is always a relevant consideration.” Marks
Oxygen Co., 147 NLRB 228, 229 (1964). See also, e.g.,
Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967)
(reaffirming “polic[y] . . . of recognizing the desires of
petitioners as being a relevant consideration in the mak-
ing of unit determinations”); E. H. Koester Bakery Co.,
136 NLRB 1006, 1012 (1962). Section 9(c)(5) of the
Act provides that “the extent to which the employees
have organized shall not be controlling.” But the Su-
preme Court has made clear that the extent of organiza-

18 The right to “self-organization” is a species of the right to freely
associate. See Thomas v. Collins, 323 U.S. 516, 532 (1945) (“[t]he
right thus to discuss, and inform people concerning, the advantages and
disadvantages of unions and joining them is protected not only as part
of free speech, but as part of free assembly”). A key aspect of the right
to “self-organization” is the right to draw the boundaries of that organi-
zation—to choose whom to include and whom to exclude. Cf. Roberts
v. U.S. Jaycees, 468 U.S. 609, 618 (1984) (recognizing that “individu-
als’ selection of those with whom they wish to join in a common en-
deavor” is a key element of freedom of association). Thus, employees
exercise their Sec. 7 rights not merely by petitioning to be represented,
but by petitioning to be represented in a particular unit. The statute
commands that we assure employees the fullest freedom in exercising
all these rights, including the right to choose whom to associate with,
when we determine whether their proposed unit is an appropriate one.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
tion may be “consider[ed] . . . as one factor” in determin-
ing if the proposed unit is an appropriate unit. NLRB v.
Metropolitan Life Insurance Co., 380 U.S. 438, 442
(1965). In Metropolitan Life, the Court made clear that
“Congress intended to overrule Board decisions where
the unit determined could only be supported on the basis
of the extent of organization.” Id. at 441 (emphasis add-
ed). In other words, the Board cannot stop with the ob-
servation that the petitioner proposed the unit, but must
proceed to determine, based on additional grounds (while
still taking into account the petitioner’s preference), that
the proposed unit is an appropriate unit. Thus, both be-
fore and after the adoption of the 9(c)(5) language in
1947, the Supreme Court had held, “[n]aturally the wish-
es of employees are a factor in a Board conclusion upon
a unit.” Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 156 (1941). We thus consider the employees’ wish-
es, as expressed in the petition, a factor, although not a
determinative factor here.
We proceed, then, to determine if the employees’ pro-
posed unit consisting of all CNAs is “a unit” appropriate
for the purposes of collective bargaining under Section
9(a). Again, the Supreme Court has recognized that the
language of Section 9(a) “suggests that employees may
seek to organize ‘a unit’ that is ‘appropriate’—not neces-
sarily the single most appropriate unit.” American Hos-
pital Assn., 499 U.S. at 610 (emphasis in original). In
other words, as the District of Columbia Circuit has held,
“[m]ore than one appropriate bargaining units logically
can be defined in any particular factual setting.” Country
Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C.
Cir. 2000) (quoting Operating Engineers Local 627 v.
NLRB, 595 F.2d 844, 848 (D.C. Cir. 1979)). See also
Overnite, 322 NLRB at 723 (“It is well-settled then that
there is more than one way in which employees of a giv-
en employer may be appropriately grouped for purposes
of collective bargaining.”).
In making the determination of whether the proposed
unit is an appropriate unit, the Board’s “focus is on
whether the employees share a ‘community of interest.’”
NLRB v. Action Automotive, Inc., 469 U.S. 490, 491
(1985). In determining whether employees in a proposed
unit share a community of interest, the Board examines:

[W]hether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer’s other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.

United Operations, Inc., 338 NLRB 123, 123 (2002). Ac-
cord: Agri Processor Co. v. NLRB, 514 F.3d 1, 8 (D.C. Cir.
2008) (to determine if a community of interest exists, the
Board typically looks at the similarity of wages, benefits,
skills, duties, working conditions, and supervision of the
employee); Bartlett Collins Co., 334 NLRB 484, 484 (2001)
(“In determining whether the employees possess a separate
community of interest, the Board examines such factors as
mutuality of interest in wages, hours, and other working
conditions; commonality of supervision; degree of skill and
common functions; frequency of contact and interchange
with other employees; and functional integration.”).19
Here, employees in the proposed unit clearly (and un-
disputedly) share a community of interest. The Regional
Director so concluded based on the CNAs’ “[d]istinct
training, certification, supervision, uniforms, pay rates,
work assignments, shifts, and work areas.” The CNAs,
of course, all occupy the same job classification. The
CNAs in the Employer’s nursing department are unlike
all the other employees the Employer would include in
the unit. Thus, they wear distinctive nursing uniforms
unlike all the other employees, most of whom wear no
uniform at all. Because they are in the nursing depart-
ment, the CNAs’ immediate and intermediate supervi-
sion (by LPNs and RNs) is separate and distinct from all
other employees’. The primary duty of the CNAs, unlike
all the other employees, is the direct, hands-on care of
facility residents. As a consequence, CNAs at this facili-
ty and nationwide experience unique risks and are sub-
ject to unique requirements. Only CNAs are routinely
exposed to blood and other bodily fluids. Only CNAs

19 It is highly significant that, except in situations where there is pri-
or bargaining history, the community-of-interest test focuses almost
exclusively on how the employer has chosen to structure its workplace.
As the Board has recognized, “We have always assumed it obvious that
the manner in which a particular employer has organized his plant and
utilizes the skills of his labor force has a direct bearing on the commu-
nity of interest among various groups of employees in the plant and is
thus an important consideration in any unit determination.” Interna-
tional Paper Co., 96 NLRB 295, 298 fn. 7 (1951). In other words, in
determining whether employees in the proposed unit share a communi-
ty of interest, the Board both insures that they can be fairly represented
by a single representative and that bargaining will occur within bounda-
ries that make sense in the employer’s particular workplace. This is
true not simply because most of the facts at issue (lines of supervision,
skill requirements, wage rates, etc.) are established by the employer,
but also because the lines across which those facts are compared are
typically drawn by the employer: lines between job classifications (as
here), departments, functions, facilities, and the like.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 943
routinely perform the physically demanding tasks of as-
sisting residents with repositioning and ambulation.20
The CNAs’ distinctive duties are further evidenced by
the fact that, at this facility and across the nation, Federal
regulations require that CNAs, unlike all nonnursing
staff, must be certified by the State and have a minimum
of 75 hours of training within 4 months of hire. 42 CFR
§ 483.75(e).21 CNAs, unlike the other employees, must
also undergo periodic training in order to maintain their
certification. Lacking such certification, other employ-
ees are barred from performing key CNA tasks such as
assisting residents with eating and positioning. CNAs
are the only employees required to staff three 8-hour
shifts. CNAs are the only employees assigned to work
exclusively in particular areas of the residential wings.
CNAs also are paid according to a distinct wage scale
although the scale falls within the range of those used to
compensate the other employees. There is only “limited
and unspecific” interaction among the CNAs and the
other employees, as the Regional Director found, and
CNAs rarely if ever interact with some of the other em-
ployees, such as the maintenance assistant, cooks, data
entry clerk, business office clerical, and receptionist.
There is no evidence of significant functional interchange
or overlapping job duties. Finally, the Regional Director
correctly found “no evidence” of transfers into the CNA
position from the other job classifications and only one
such transfer out of the CNA position.
Applying traditional community of interest factors to
these facts,22 we have little difficulty in concluding that
the petitioned-for unit is an appropriate unit.
C. Application of the Traditional Standard When
the Employer Contends that the Smallest
Appropriate Unit Contains Employees
not in the Petitioned-For Unit
Having overruled Park Manor and thus rejected the
Employer’s argument for a categorical application of the

20 The distinct nature of the CNAs’ duties is evidenced by the fact
that CNAs suffer a much higher incidence of workplace injury than the
other classifications the Employer would include in the unit. Nation-
wide, CNAs were in the 98th percentile for injury rates in 2007, suffer-
ing more nonfatal injuries than either correctional officers or firefight-
ers. Occupational Outlook Handbook; BLS, 2009 Nonfatal Occupa-
tional Injuries and Illnesses: Private Industry, State Government, and
Local Government, Chart 5 (Nov. 9, 2009), at
http://www.bls.gov/iif/osh/case/osch0043.pdf.
21 Federal law imposes other unique requirements on CNAs, for ex-
ample, that the states maintain a registry of all certified CNAs and
make available to the public any findings of neglect or abuse by CNAs.
42 CFR § 1396r (e)(2)(A) and (B).
22 The dissent repeatedly insists that we have altered the traditional
community-of-interest test. We have not done so. Rather, we have
applied that test and the dissent makes no effort to demonstrate that we
have done so erroneously.
acute care hospital unit rule to nursing homes, and hav-
ing found that the CNAs are clearly identifiable as a
group and share a community of interest, we come to the
question of what showing is required to demonstrate that
a proposed unit consisting of employees readily identifi-
able as a group who share a community of interest is
nevertheless not an appropriate unit because the smallest
appropriate unit contains additional employees.
It is clear what types of showings are not sufficient.
Given that the statute requires only an appropriate unit,
once the Board has determined that employees in the
proposed unit share a community of interest, it cannot be
that the mere fact that they also share a community of
interest with additional employees renders the smaller
unit inappropriate. Stated in terms directly relevant to
this case, “the Board has held that the appropriateness of
an overall unit does not establish that a smaller unit is
inappropriate.” Montgomery Ward & Co., 150 NLRB
598, 601 (1964) (citing cases). Because a proposed unit
need only be an appropriate unit and need not be the only
or the most appropriate unit, it follows inescapably that
demonstrating that another unit containing the employees
in the proposed unit plus others is appropriate, or even
that it is more appropriate, is not sufficient to demon-
strate that the proposed unit is inappropriate. More must
be shown. As the District of Columbia Circuit held,
“[t]hat the excluded employees share a community of
interest with the included employees does not, however,
mean there may be no legitimate basis upon which to
exclude them; that follows apodictically from the propo-
sition that there may be more than one appropriate unit.”
Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C.
Cir. 2008). The Seventh Circuit has agreed: “[I]t is not
enough for the employer to suggest a more appropriate
unit; it must ‘show that the Board’s unit is clearly inap-
propriate.’” Dunbar Armored, Inc. v. NLRB, 186 F.3d
844, 847 (7th Cir. 1999) (quoting NLRB v. Aaron’s Of-
fice Furniture, 825 F.2d 1167, 1169 (7th Cir. 1987)).
Nor is a unit inappropriate simply because it is small.23
The fact that a proposed unit is small is not alone a rele-
vant consideration, much less a sufficient ground for
finding a unit in which employees share a community of
interest nevertheless inappropriate.24 As the Supreme

23 In fact, the proposed unit of CNAs in this case is over twice the
median size of units found appropriate prior to Board-supervised elec-
tions in the last decade. 76 Fed. Reg. 36821 (June 22, 2011) (stating
that median unit size from 2001 to 2010 has been 23–26 employees).
24 Only in the case of a unit composed of a single employee is small
size disqualifying. See, e.g., Mount St. Joseph’s Home for Girls, 229
NLRB 251, 252 (1977); Luckenbach Steamship Co., 2 NLRB 181, 193
(1936) (“the principle of collective bargaining presupposes that there is
more than one eligible person who desires to bargain”). But the Act
permits the Board to find a unit appropriate so long as it contains more
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 944
Court has observed, “A cohesive unit—one relatively
free of conflicts of interest—serves the Act’s purpose of
effective collective bargaining, Pittsburgh Plate Glass
Co. v. NLRB, 313 U.S. 146, 165 (1941), and prevents a
minority interest group from being submerged in an
overly large unit, Chemical Workers Local 1 v. Pitts-
burgh Plate Glass Co., 404 U.S. 157, 172–173 (1971).”
NLRB v. Action Automotive, 469 U.S. at 494 (parallel
citations omitted). The Board has articulated a “polic[y]
of not compelling labor organizations to seek representa-
tion in the most comprehensive grouping.” Mc-Mor-Han
Trucking Co., 166 NLRB at 701. “A union is, therefore,
not required to request representation in the most com-
prehensive or largest unit of employees of an employer
unless ‘an appropriate unit compatible with that request-
ed unit does not exist.’” Overnite, 322 NLRB at 723–
724 (citations omitted); see also Federal Electric Corp.,
157 NLRB at 1132. “The issue,” the Board recently
made clear, “is not whether there are too few or too many
employees in the unit.” Wheeling Island Gaming, 355
NLRB 637, 637 fn. 2 (2010).
Nor does Section 9(c)(5) in any way favor larger units.
Senator Taft specifically rebutted objections to the 1947
amendments, which he cosponsored and which intro-
duced the language now in Section 9(c)(5) into the Act,
on this ground, explaining, “It is sufficient answer to say
that the Board has evolved numerous tests to determine
appropriate units, such as community of interest of em-
ployees involved, extent of common supervision, inter-
change of employees, geographic considerations, etc.,
any one of which may justify the finding of a small unit.”
2 Leg. Hist. 1624 (1947) (Congressional Record, Senate,
June 12, 1947). In other words, if employees in a pro-
posed unit share a community of interest, the unit is not
inappropriate, nor would finding it appropriate violate
Section 9(c)(5), simply because it is small.
When the proposed unit describes employees readily
identifiable as a group and when consideration of the
traditional factors demonstrates that the employees share
a community of interest, both the Board and courts of
appeals have necessarily required a heightened showing
to demonstrate that the proposed unit is nevertheless in-
appropriate because it does not include additional em-
ployees. Although different words have been used to
describe this heightened showing, in essence, a showing
that the included and excluded employees share an over-
whelming community of interest has been required. Cit-
ing a number of Board decisions, the District of Colum-
bia Circuit held in Blue Man Vegas, LLC v. NLRB, 529

than one eligible employee. Id.; Copier Care Plus, 324 NLRB 785
(1997) (two-person unit); Sonoma-Marin Publishing Co., 172 NLRB
625 (1968) (three-person unit at time of certification).
F.3d 417 (D.C. Cir. 2008), that the proponent of the larg-
er unit must demonstrate that employees in the more en-
compassing unit share “an overwhelming community of
interest” such that there “is no legitimate basis upon
which to exclude certain employees from it.” 529 F.3d at
421. Using a Venn diagram to illustrate its point, the
Court explained that, considering traditional community-
of-interest factors, two groups have an “overwhelming
community of interest” when the factors “overlap almost
completely.” Id. at 422. The Board has articulated the
same standard. See, e.g., Laneco Construction Systems,
339 NLRB 1048, 1050 (2003) (“we reject the Employ-
er’s argument that the Lang-supplied carpenters and
helpers shared such an overwhelming community of in-
terests with its solely-employed carpenters and helpers
that a unit excluding the former employees would be
inappropriate”); Lundy Packing Co., 314 NLRB 1042,
1043 (1994) (holding that the exclusion of certain em-
ployees from the petitioned-for unit did not render it in-
appropriate because the excluded employees did “not
share such an overwhelming community of interest” with
employees in the unit), enf. denied 68 F.3d 1577 (4th Cir.
1995);25 cf. United Rentals, 341 NLRB 540, 541 (2004)
(“overwhelming and undisputed evidence of overlapping
duties and interchange between the excluded employees
and the petitioned-for employees, and of their common
terms and conditions of employment”).
We acknowledge that the Board has sometimes used
different words to describe this standard and has some-
times decided cases such as this without articulating any
clear standard. For example, while explaining that the
Board “never addresses solely and in isolation, the ques-
tion whether the employees in the unit sought have inter-
ests in common with one another,” the Board recently

25 While the Fourth Circuit denied enforcement in Lundy, the D.C.
Circuit later explained in Blue Man Vegas that this was not because the
Board’s overwhelming-community-of-interest standard improperly
gives controlling weight to the extent of organization. Blue Man Ve-
gas, 529 F.3d at 422–423. “As long as the Board applies the over-
whelming community-of-interest standard only after the proposed unit
has been shown to be prima facie appropriate, the Board does not run
afoul of the statutory injunction that the extent of the union's organiza-
tion not be given controlling weight.” Id. at 423. Thus, the court in
Blue Man Vegas held that the Board had applied the correct legal
standard, id. at 427, but had not first made the necessary findings.
Here, we make clear that employees in the petitioned-for unit must be
readily identifiable as a group and the Board must find that they share a
community of interest using the traditional criteria before the Board
applies the overwhelming-community-of-interest standard to the pro-
posed larger group. Thus, the rule disapproved by the court in Lundy,
as quoted in the dissent (“Under this new standard, any union-proposed
unit is presumed appropriate unless an ‘overwhelming community of
interest’ exists between the excluded employees and the union-
proposed unit”) is vastly and crucially different from the standard we
apply here.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 945
indicated that the inquiry must proceed to determine
“whether the interests of the group sought are sufficiently
distinct from those of other employees.” Wheeling Is-
land Gaming, 355 NLRB 637, 637 fn. 2 (emphasis and
citation omitted). See also Seaboard Marine, 327 NLRB
556, 556 (1999) (“sufficiently distinct community of
interest”). Of course, that language leaves open the ques-
tion of what degree of difference renders the groups’
interests “sufficiently distinct.” Nevertheless, the Board
has repeatedly used words that describe a heightened
standard, for example, holding that a proposed unit was
“too narrow in scope in that it excludes employees who
share a substantial community of interest with employ-
ees in the unit sought.” Colorado National Bank of Den-
ver, 204 NLRB 243, 243 (1973) (emphasis added and
footnote omitted). Even in a single case, such as Lundy
Packing, the Board has used different terms to describe
the same standard, requiring an “overwhelming commu-
nity of interest” and holding that excluded employees
need not be included because they did “not share such a
close community of interest” with the included employ-
ees. 314 NLRB at 1045 (emphasis added). In an earlier
case, the Board used yet other words to describe the de-
gree of overlap required to render a proposed unit in
which employees share a community of interest inappro-
priate. Citing characteristics common to employees in
the smaller unit and excluded employees, the Board held,
“these factors are not so significant as to require the in-
clusion of all the employees in a single unit.” Mc-Mor-
Han Trucking Co., 166 NLRB at 701–702 (emphasis
added).26
Absolute precision and predictability, of course, are
not possible in this highly fact-specific endeavor engaged
in with regard to diverse workplaces.27 However, the use

26 See also Engineered Storage Products Co., 334 NLRB 1063, 1063
(2001) (“test is whether the community of interest they share . . . is so
strong that it requires or mandates their inclusion in the unit”) (empha-
sis added); Lawson Mardon, U.S.A., 332 NLRB 1282, 1282 (2000)
(“such a substantial community of interest . . . so as to require their
inclusion in the same unit”) (emphasis added); United Rentals, 341
NLRB at 542 (same); J. C. Penney Co., 328 NLRB 766, 766 (1999)
(“employees share such a strong community of interest with the em-
ployees in the unit found appropriate that their inclusion is required”)
(emphasis added); Home Depot, USA, 331 NLRB 1289, 1289 (2000)
(“we disagree . . . that this evidence of job overlap and employee inter-
change is significant enough to warrant the conclusion that the [peti-
tioned-for] drivers do not constitute a functionally distinct group with a
distinct community of interest”) (emphasis added); Ramada Inns, Inc.,
221 NLRB 689, 690 (1975) (only “if functions and mutual interests are
highly integrated [is] an overall unit alone appropriate”) (emphasis
added); Monsanto, 183 NLRB 415, 416 (1970) (“any separate commu-
nity of interest . . . largely submerged in the broader community of
interest”).
27 Twenty years ago, Judge Easterbrook observed, “Chaos there may
be, but this is nothing new. Unit-determination decisions have been ad
of slightly varying verbal formulations to describe the
standard applicable in this recurring situation does not
serve the statutory purpose “to assure to employees the
fullest freedom in exercising the rights guaranteed by
th[e] Act.” Nor does it permit employers to order their
operations with a view toward productive collective bar-
gaining should employees choose to be represented. We
therefore take this opportunity to make clear that, when
employees or a labor organization petition for an election
in a unit of employees who are readily identifiable as a
group (based on job classifications, departments, func-
tions, work locations, skills, or similar factors), and the
Board finds that the employees in the group share a
community of interest after considering the traditional
criteria, the Board will find the petitioned-for unit to be
an appropriate unit, despite a contention that employees
in the unit could be placed in a larger unit which would
also be appropriate or even more appropriate, unless the
party so contending demonstrates28 that employees in the

hoc since 1935.” Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898,
890 (7th Cir. 1991). But that is hardly a standard to aspire to in this
area fraught with implications for the effective exercise of statutory
rights.
28 While prior Board decisions do not expressly impose the burden
of proof on the party arguing that the petitioned-for unit is inappropri-
ate because the smallest appropriate unit contains additional employees,
allocating the burden in this manner is appropriate for several reasons.
First, because it is well established that “the Board looks first to the
unit sought by the petitioner, and if it is an appropriate unit, the Board’s
inquiry ends,” Wheeling Island Gaming, Inc., 355 NLRB 637, 637 fn.
2, the Board should find the proposed unit to be an appropriate unit
under the circumstances here unless the employer both contends and
proves that a larger unit is the smallest appropriate unit.
Second, as when the petitioned-for unit is presumptively appropriate,
after there has been a showing that the petition describes employees
who are readily identifiable as a group and share a community of inter-
est, the Board can and should find the proposed unit to be an appropri-
ate unit unless an opposing party proves otherwise. See Allen Health
Care Services, 332 NLRB 1308, 1309 fn. 3 (2000) (“when the unit
sought is presumptively appropriate, the burden is on the employer to
show that the unit is inappropriate”) (citing AVI Foodsystems, Inc., 328
NLRB 426 (1999)).
Finally, the allocation of the burden is appropriate because the em-
ployer is in full and often near-exclusive possession of the relevant
evidence. The Board has allocated the burden of proof for this reason
in defining the scope of appropriate units both pre and postelections.
See Capri Sun, 330 NLRB 1124, 1126 fn. 8 (2000) (“It is the Employer
. . . that tenders the evidence of these transfers in support of its argu-
ment that the petitioned-for unit is not appropriate, and it is the Em-
ployer that possesses and maintains the records which would support its
assertions. In these circumstances, the burden to establish the time
frame of the transfers is on the Employer”); Harold J. Becker Co., 343
NLRB 51, 52 (2004) (when employer argued that employees should be
included in the unit as dual-function employees, the Board held, “It is
the Employer, of course, who is in the best position to establish that
status, because it has superior access to the relevant information.”); cf.
O. E. Butterfield, Inc., 319 NLRB 1004, 1006 (1995) (in disputes over
whether striker replacements are temporary or permanent, the Board
held that, “Because an employer is the party with superior access to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
larger unit share an overwhelming community of interest
with those in the petitioned-for unit.29
For example, employees inside and outside a proposed
unit share an overwhelming community of interest when
the proposed unit is a “fractured” unit. A petitioner can-
not fracture a unit, seeking representation in “an arbitrary
segment” of what would be an appropriate unit. Pratt &
Whitney, 327 NLRB 1213, 1217 (1999). “[T]he Board
does not approve fractured units, i.e., combinations of
employees that are too narrow in scope or that have no
rational basis.” Seaboard Marine, 327 NLRB 556, 556
(1999).30 If the proposed unit here consisted of only se-
lected CNAs, it would likely be a fractured unit: the se-
lected employees would share a community of interest
but there would be “no rational basis” for including them
but excluding other CNAs.31 If the proposed unit here
consisted of only CNAs working on the night shift or
only CNAs working on the first floor of the facility, it
might be a fractured unit. Cf. Wheeling Island Gaming.32
In other words, no two employees’ terms and conditions
of employment are identical, yet some distinctions are
too slight or too insignificant to provide a rational basis
for a unit’s boundaries. But the proposed unit of all
CNAs is in no way a fractured unit simply because a
larger unit containing the CNAs and other employee
classifications might also be an appropriate unit or even a
more appropriate unit.
While application of this standard, of course, still turns
on the facts in particular workplaces, we anticipate that

relevant information, the burden should logically be placed on it to
show that it had a mutual understanding with the replacements that they
are permanent.”)
29 While our dissenting colleague criticizes the standard we articulate
above, he does not parse the language in our prior cases addressing this
precise issue or offer any alternative standard consistent with those
cases.
We note that the Board has developed various presumptions and
special industry and occupation rules in the course of adjudication. Our
holding today is not intended to disturb any rules applicable only in
specific industries other than the rule announced in Park Manor.
30 We read this language in Seaboard to suggest only that a unit is
“too narrow in scope” only if it has no “rational basis,” i.e., it is frac-
tured, because, as explained above, small size alone is not disqualify-
ing.
31 Even if the proposed unit contained all employees occupying a
nominally distinct classification, the proposed unit would be a fractured
unit if, in fact, the employees in the classification did not perform dis-
tinct work under distinct terms and conditions of employment. See,
e.g., Wal-Mart Stores, 328 NLRB 904 (1999) (finding that meatcutters
alone were not an appropriate craft-based unit because they no longer
performed work distinct from that of the other meat department em-
ployees).
32 The dissent asserts that the holding here effectively overrules
Wheeling Island Gaming, but, as demonstrated in our citations to that
decision here and elsewhere in our opinion, the majority holding there
is, in fact, an integral part of our analysis here.
clarifying its verbal formulation and application will re-
duce litigation. Making clear what the party objecting to
a petitioned-for unit must contend and demonstrate,
when the petitioned-for unit contains employees readily
identified as a group who share a community of interest,
will also produce more predictable and consistent results.
As fully explained above, the employees the Employer
seeks to include in the proposed unit do not share an
overwhelming community of interest with the CNAs.
Thus, the Employer’s contention fails in this case.
D. There is no Undue Proliferation Here
Despite what the Supreme Court has now made clear is
the nonbinding nature of Congressional statements about
proliferation of bargaining units in the legislative history
of the health care amendments, the Board has neverthe-
less respected the suggestion that it seek to avoid undue
proliferation. In St. Mary’s Duluth Clinic, 332 NLRB
1419, 1421 fn. 10 (2000), the Board recognized the Su-
preme Court’s holding on proliferation (holding that non-
incumbent union may represent separate residual unit in
healthcare industry, notwithstanding “congressional ad-
monition against . . . undue proliferation”). While this
administrative deference to nonstatutory statements may,
in some future case, be in tension with the Board’s statu-
tory duty to require only that a proposed unit be an ap-
propriate unit,33 there is no such conflict here because
there is no undue proliferation or even danger of undue
proliferation.34
The 53 CNAs in this case35 appear to constitute over
50 percent of the Employer’s employees, and only the
CNA unit is before us. Generally, CNAs comprise as
much as 70 percent of all staff in nursing homes. BLS,
Nursing and Psychiatric Aides, in Occupational Outlook
Handbook 156 (1010–1011 ed.). Neither finding the
proposed unit of CNAs appropriate in this case, nor cre-
ating a precedent supporting future holdings that such

33 The Board frankly acknowledged in Newton-Wellesley, a decision
issued before the Supreme Court clearly described the legislative histo-
ry’s lack of legal force, that there have been a “number of situations in
which the Board has refused to approve units that, in any other context,
would amount to appropriate units.” 250 NLRB at 412.
34 For this reason, the dissent’s suggestion that we ignore Congress’
admonition in this regard is misplaced, as is the specter of undue prolif-
eration of units in future cases that the dissent raises.
35 Notably, in Four Seasons Nursing Center, 208 NLRB 403 (1974),
and St. Luke’s Hospital, 203 NLRB 1232 (1973), the two Board cases
involving nursing homes cited with approval in the 1974 Committee
Reports, the proposed nursing home units found inappropriate by the
Board contained two and seven employees, respectively. The acute
care hospital case cited with approval in the Committee Reports, Wood-
land Park Hospital, 205 NLRB 888 (1973), involved a proposed unit of
10–12 x-ray technicians in a workplace of 41–48 technical employees
and, presumably, hundreds of other employees.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 947
units are appropriate in other nursing homes, risks undue
proliferation of bargaining units.
In general, there would seem to be much less risk of
“undue proliferation” of units in nursing homes than in
acute care hospitals because there are fewer employees
occupying fewer separate classifications in nursing
homes. Amici American Health Care Association, Na-
tional Center for Assisted Living, Assisted Living Feder-
ation of America, American Seniors Housing Associa-
tion, Leading Age, and Alliance for Quality Home Care
assert that today “the trend is clearly toward a less com-
partmentalized approach” in long-term care. Brief at 17.
Citing the rapid expansion of “assisted living communi-
ties,” these amici state that “[b]ecause of [residents’]
lower acuity levels, these assisted living communities are
less heavily staffed and need employ fewer professional
and technical employees.” Brief at 20. In other words,
long-term care workplaces seem to be evolving even
further away from the intensively staffed and highly spe-
cialized acute care hospital paradigm that motivated con-
gressional concern about undue fragmentation in 1974.
Finally, we note that none of the parties or amici has
offered any evidence showing that organizing and repre-
sentation in units other than those defined in the acute
care hospital unit rule has led to adverse consequences
for residents of nursing homes, nursing home operators,
or the general public.36 There is no evidence of “jurisdic-
tional disputes or work stoppages,” “wage ‘leapfrogging’
and ‘whipsawing,’” or increased costs. 120 Cong. Rec.
12944–12945 (May 2, 1974) (statement of Senator Taft).
Rather, the parties raise abstract specters that do not
comport with our experience in labor relations in the
health care industry or more generally.
In Manor Healthcare Corp., 285 NLRB 224 (1987),
the Board acknowledged the “seriousness of Congress’
concern” about undue proliferation of units in health care
workplaces and the resulting possibility of “an increased
risk of work disruption or other adverse consequences.”
Id. at 226. Accordingly, the Board provided that when
its traditional criteria lead to the conclusion that a pro-

36 We consider this significant given that the notice and invitation to
file briefs specifically asked parties to “submit empirical and practical
descriptions of their experience,” 356 NLRB 291, 292, and given the
fact that briefs were filed by parties with broad, deep, and extended
experience in the industry, including amici United States Chamber of
Commerce, American Hospital Association, American Society for
Healthcare Human Resources Administration, American Health Care
Association, National Center for Assisted Living, Assisted Living
Federation of America, American Seniors Housing Association, Lead-
ing Age, and the Alliance for Quality Nursing Home Care. Indeed,
amicus American Healthcare Associationsindicates that it has members
with long-term care facilities where nursing assistants are represented
in separate units, yet it presents no evidence and did not even suggest
that such representation has led to any adverse effects. Br. at 15 fn. 11.
posed unit is appropriate (in that case because the pro-
posed single-facility unit was presumptively appropri-
ate), the health care employer could nevertheless respond
by “providing a reasonable basis for finding an increased
risk that is substantial.” Id. No such showing has been
made here.
Giving due consideration to the danger of undue pro-
liferation of bargaining units in the health care industry,
we find that it does not alter our conclusion, above, that
the proposed unit of CNAs is appropriate.
V. CONCLUSION
Our dissenting colleague is simply wrong when he
says that “[t]oday’s decision fundamentally changes the
standard for determining whether a petitioned-for unit is
appropriate in any industry subject to the Board’s juris-
diction.” Our decision adheres to well-established prin-
ciples of bargaining-unit determination, reflected in the
language of the Act and decades of Board and judicial
precedent. The changes in the law made here are rela-
tively modest ones:

(1) We overrule one decision, Park Manor,
which had created a unique test for unit determina-
tions in nonacute health care facilities (the “pragmat-
ic or empirical community of interests” test).
(2) We hold that the traditional community of in-
terest test—to which we adhere—will apply as the
starting point for unit determinations in all cases not
governed by the Board’s Health Care Rule (includ-
ing cases formerly controlled by Park Manor).
(3) We set out a clear test—using a formulation
drawn from Board precedent and endorsed by the
District of Columbia Circuit—for those cases in
which an employer contends that a proposed bar-
gaining unit is inappropriate because it excludes cer-
tain employees. In such cases, the employer must
show that the excluded employees share an “over-
whelming community of interest” with the peti-
tioned-for employees.

We have fully explained why these changes further the
policies and purposes of the Act, as they have long been
understood.37
In light of all of the foregoing, we find that the peti-
tioned-for Certified Nursing Assistants constitute an ap-
propriate unit. Accordingly, we remand this proceeding
to the Regional Director for further appropriate action.

37 As in our opinions in Lamons Gasket and UGL, we firmly believe
that the dissent’s extraordinary accusations should only be answered
through careful analysis of the Act, the policies embedded therein, and
prior precedent. Our answer is thus fully contained in the opinion
above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
ORDER
IT IS ORDERED that this proceeding is remanded to the
Regional Director for further appropriate action in ac-
cordance with this Decision.

MEMBER HAYES, dissenting.
Make no mistake. Today’s decision fundamentally
changes the standard for determining whether a peti-
tioned-for unit is appropriate in any industry subject to
the Board’s jurisdiction. My colleagues’ opinion stun-
ningly sweeps far more broadly even than suggested by
the questions posed in the notice and invitation to file
briefs to which I previously dissented.1 It is regrettable
enough that they mischaracterize and overrule Park
Manor,2 which established a balanced legal standard
maintained in nonacute care health care unit cases with-
out controversy for 20 years (and without any objection
from the party seeking review in this case). In the pro-
cess, they essentially nullify the Board’s practice of tak-
ing guidance from legislative history cautioning against
proliferation of units in the health care industry and they
set the stage for erosion of the unit rule adopted in 1989
for acute care facilities after an exhaustive rulemaking
process. Beyond that, the majority accepts as the defini-
tive standard for unit determinations in all industries an
“overwhelming community of interest” test that will
make the relationship between petitioned-for unit em-
ployees and excluded coworkers irrelevant in all but the
most exceptional circumstances. The wording of the test
may be different, but in practical effect this is the stand-
ard espoused by the dissent and rejected by a Board ma-
jority in Wheeling Island Gaming, Inc.3
I. THE PROCESS
This decision is the culmination of an ill-considered
journey. The parties involved did not request any broad
inquiry. The Employer requested review because the
Regional Director erroneously failed to apply Park Man-
or in determining that a petitioned-for unit of certified
nursing assistants (CNAs) in the Employer’s nursing
home facility was appropriate for bargaining. However,
the majority seized on this opportunity to solicit com-
ment on questions ranging far beyond the issue actually
presented in this case. For this reason, I took the unusual
step of dissenting from the notice and invitation to file
briefs.4

1 Specialty Healthcare & Rehabilitation Center of Mobile, 356
NLRB 289 (2010).
2 305 NLRB 872 (1991).
3 355 NLRB 637 (2010) (opinion of Chairman Liebman and former
Member Schaumber; Member Becker dissenting).
4 Specialty Healthcare, 356 NLRB 289, 292–294 (2010).
In that dissent, I expressed the view, to which I adhere,
that the majority is overstepping the bounds of its discre-
tion in making sweeping changes to established law
through this adjudication, without adhering to any ap-
proximation of a rulemaking procedure that would com-
ply with requirements under the Administrative Proce-
dures Act (APA) designed to safeguard the process by
ensuring scrutiny and broad-based review. This is par-
ticularly so because, under Park Manor, the test for de-
termining appropriate units in the nonacute health care
industry is informed by the exhaustive rulemaking pro-
cess engaged in over 20 years ago when the Board first
took on the task of determining appropriate bargaining
units in the entire health care industry. I make the addi-
tional note here that the majority’s choice of adjudication
in this instance also runs afoul of President Obama’s
Memorandum on Transparency and Open Government,5
making clear that independent agencies have an obliga-
tion to do much more than provide minimal due process
to assure that regulatory actions implement the principles
of transparency, participation, and collaboration.
Even assuming the propriety of proceeding by adjudi-
cation, the briefing results here provide no reason to
change longstanding and noncontroversial Board prece-
dent. In response to questions concerning the continued
viability of Park Manor, parties and amici agreed that
there is no imperative to change that law, although, as the
majority notes, there was disagreement on how to resolve
this case under existing law, with several union-side
briefs advocating reinterpretation of the precedent.
Moreover, little information was provided in response to
questions concerning emerging factual patterns in
nonacute care facilities and experience under Park Man-
or affecting employee free choice.
The final briefing questions went well beyond the facts
and issues presented and asked if the Board should find
“presumptively appropriate” units, in nonacute care facil-
ities or as a general rule, comprised of employees per-
forming the same job in the same facility or, similarly,
employees “readily identifiable as a group” based on
similarity of function and skills.6 The silence in response
to the Board’s solicitation of support for such a broad
reformation of representation case law speaks volumes.

5 74 Fed. Reg. 4685, 4685–4686 (Jan. 26, 2009).
6 “(7) Where there is no history of collective bargaining, should the
Board hold that a unit of all employees performing the same job at a
single facility is presumptively appropriate in nonacute health care
facilities. Should such a unit be presumptively appropriate as a general
matter. (8) Should the Board find a proposed unit appropriate if, as
found in American Cyanamid Co., 131 NLRB 909, 910 (1961), the
employees in the proposed unit are ‘readily identifiable as a group
whose similarity of function and skills create a community of interest.’”
356 NLRB 289, 290.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 949
In sum, despite being given every opportunity to do so,
the parties and amici, with perhaps a single exception,
did not express support for a strikingly new unit determi-
nation standard within or outside of the health care in-
dustry. Nevertheless, my colleagues respond not only by
overruling Park Manor but also by redefining the test for
determining an appropriate unit in both nonacute
healthcare facilities and all other nonhealth care indus-
tries. This is perhaps the most glaring example in cases
decided recently of my colleagues initiating a purported
empirical inquiry into the effects of extant precedent,
only to end by overruling that precedent in the absence of
any factual justification, for the purely ideological pur-
pose of reversing the decades-old decline in union densi-
ty in the private American work force.7
II. THE OVERRULING OF PARK MANOR
In the rulemaking process preceding publication of the
final health care rule, the Board acquired extensive in-
formation regarding nonacute care institutions, such as
nursing homes. Although acknowledging that rapid tran-
sition within the nonacute care segment of the industry
and significant differences among types of facilities
made it difficult to establish uniform rules, the Board
recognized that there was generally less diversity and
more functional integration in nursing homes among
various employee groupings.8 In the final rule itself, the
Board decided to limit its unit determinations to acute
health care facilities and to leave to case-by-case adjudi-
cation the determination of appropriate units in nonacute
health care facilities, including nursing homes.
After the Supreme Court affirmed the health care rule
in American Hospital Assn. v. NLRB, 499 U.S. 606
(1991) (AHA), the Board in Park Manor addressed the
issue of what test to apply in adjudicating appropriate
unit issues in the nonacute health care sector. It deter-
mined to use a variant of the traditional community-of-
interest test, stating that

we prefer to take a broader approach utilizing not only
‘‘community of interests’’ factors but also background
information gathered during rulemaking and prior
precedent. Thus, as more fully set forth below, our con-
sideration will include those factors considered relevant
by the Board in its rulemaking proceedings, the evi-
dence presented during rulemaking with respect to
units in acute care hospitals, as well as prior cases in-
volving either the type of unit sought or the particular
type of health care facility in dispute. We hope, howev-

7 See Lamons Gasket Co., 357 NLRB No. 72 (2011), and UGL-
UNICCO Service Co., 357 NLRB No. 76 (2011).
8 Second Notice of Proposed Rulemaking, 53 Fed. Reg. 33900 at
33927–33929 (1988).
er, that after various units have been litigated in a num-
ber of individual facilities, and ‘‘after records have
been developed and a number of cases decided from
these records, certain recurring factual patterns will
emerge and illustrate which units are typically appro-
priate.’’9

The Board also stated that the general principle in its health
care rule of striking a balance between units that are too
large, making union organizing difficult, and too small, cre-
ating the potential for repetitious bargaining and/or frequent
strikes, was “equally applicable to unit determinations in
nonacute care facilities.”10
Today, notwithstanding the enhancement of the origi-
nal rulemaking record and precedent through the accu-
mulation of 20 years of litigation experience in a variety
of nonacute care facilities, the majority now overrules the
Park Manor test. They contend that (1) any reliance on
the Congressional admonition against unit proliferation
in the health care industry11 is unfounded; (2) a back-
wardlooking test relying on a dated health care rulemak-
ing record and on precedent in cases prior to that rule-
making makes no sense for the determination of appro-
priate units in a highly dynamic industry; and (3) the
difference between the Park Manor test and the Board’s
traditional community of interest test is not readily un-
derstandable.
In sum, the majority claims that the “idiosyncratic”
Park Manor test is obsolete and fails to provide clear
guidance “to interested parties or the Board . . .” I, on the
other hand, perceive a difference between old and obso-
lete. Further, I fail to see why my colleagues seem so
confused about the Park Manor test when there is no
evidence in this record or in the history of litigation un-
der Park Manor that “interested parties” are as confused.
First, as to the significance of the Congressional ad-
monition that the Board should give due consideration to
preventing proliferation of bargaining units in the health
care industry, the majority is obviously correct that the
Supreme Court instructed in AHA that this admonition
did not have the “force of law.”12 Nevertheless, the
Board relied in part on the admonition when limiting to
eight the number of units in acute care facilities. The
Court did not say it was impermissible to do so in the
exercise of the Board’s broad discretion to make appro-

9 305 NLRB at 875 (footnotes omitted).
10 Id. at 876.
11 Committee Reports for the 1974 amendments conferring Board ju-
risdiction over nonprofit health care industry employers. S. Rep. No.
766, 93rd Cong., 2d Sess. 5 (1974); H.R. Rep. No. 1051, 93rd Cong.,
2d Sess. 7 (1974) (footnote omitted).
12 499 U.S. at 616.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950
priate unit determinations pursuant to Section 9(b) of the
Act.
For the present case, it is enough to say again that
there is nothing wrong, and much right, about consider-
ing the admonition as well under the Park Manor test.
The admonition itself was addressed to unit determina-
tions in the entire health care industry. Its application
seems particularly apt in the nonacute care branch of that
industry where the record in the health care rulemaking
proceeding suggested that broader groupings of employ-
ees in a more highly integrated and homogenous work-
force would tend towards finding fewer appropriate units
than in the larger, more highly skilled, and specialized
work force of acute care facilities. Thus, guided by the
admonition, the Board in Park Manor declared that it
would seek to strike a balance between units deemed too
large and those deemed too small. The majority consid-
ers this to be contrary to the Board’s statutory obligation.
Obviously, I disagree, and I question whether they seri-
ously contend that the Board should ignore the admoni-
tion, finding as many bargaining units appropriate as
petitioned for, until such time as Congress puts the force
of law behind its warning.
Second, as to the majority’s claim of infirmity in Park
Manor’s continuing reliance on an “obsolete” health care
rulemaking record, there is little in the present record to
suggest that dynamic growth in the nursing home indus-
try or the entire nonacute health care sector has been ac-
companied by any fundamental changes in the nature of
work performed since that record was compiled. There
is no basis for finding that nursing homes and other
nonacute care facilities do not still have more functional-
ly integrated and homogenous staffs than in acute care
facilities. In particular reference to CNAs, the petitioned-
for employee group in this case, amicus Service Employ-
ees International Union (SEIU), provided the most de-
tailed description of their work as primary caregivers to
support the assertion that this work is significantly dif-
ferent and more important than that of other nonprofes-
sionals in nursing homes. But SEIU did not describe the-
se attributes as recently gained as the result of industry
transformation. In fact, some details given about CNA
work and job requirements predated the Board’s health
care rule. Conversely, amicus American Health Care
Association & National Center for Assisted Living
(AHCA) presented data indicating that, despite expan-
sion and diversification, the functions of employees of
long-term health care institutions remain basically un-
changed. AHCA also notes the recent trend toward the
interdisciplinary team model that further breaks down
functional barriers between job classification and results
in a less compartmentalized approach, thus making the
Board’s observations of over 20 years ago even more
relevant today.
In any event, contrary to the majority, Park Manor did
not envision that the Board would simply look backward
to “questionable” precedent predating rulemaking. As
noted in the briefing request, Park Manor envisioned that
subsequent cases would establish recurring patterns to
illustrate which units are typically appropriate in
nonacute care settings. One such recurring pattern re-
flected in post-Park Manor precedent has been to com-
bine CNAs with others in a comprehensive service and
maintenance unit. In fact, a search of the Board’s rec-
ords in response to a Freedom of Information Request
from AHCA identified only four cases in which an elec-
tion was directed in a CNA-only unit, all pursuant to
stipulated election agreements.13 More to the point, until
my colleagues got involved, no one has indicated a prob-
lem with this pattern. I do not dispute the importance of
CNAs or the majority’s description of their duties in this
nursing home setting, but I find no support there for the
conclusion that change in the Board’s historical approach
is warranted.
Finally, as to the majority’s claim that the difference
between the Park Manor test and the traditional commu-
nity-of-interest test is not understandable, I profess some
skepticism. The Board has applied Park Manor for ap-
proximately two decades without apparent misunder-
standing by the parties. The number of contested cases
to come before the Board under this test is quite few.
The majority sua sponte chose to raise the issue whether
the Board should adhere to this test, and it found little
support for overruling it in briefs filed by the parties and
amici.
All of this is of little consequence to my colleagues.
They know full well that a petitioned-for CNA unit
would ordinarily be found inappropriate under the Park
Manor test, but it serves their greater purpose to overrule
that test in order to get to the issue they really want to
address, that is, a reformulation of the community-of-
interest test.
III. THE MAJORITY’S “COMMUNITY-OF-INTEREST” TEST
The majority purports to apply “traditional communi-
ty-of-interest” principles in making unit determinations
for nonacute health care facilities. However, their defini-
tion of these principles is far from traditional and will
have the intended dramatically different results in appro-
priate unit determinations for all industries. In this re-

13 I am aware of no case, and the majority did not cite to one, in
which the Board itself has determined in a representation case that a
disputed petitioned-for unit of CNAs was appropriate under Park Man-
or.
SPECIALTY HEALTHCARE & REHABILITATION CENTER OF MOBILE 951
spect, it takes some time to pick through the majority’s
recitation of undisputed, well-established unit determina-
tion principles to get to the marrow of their opinion.
Once there, we discover that “[w]hen the proposed unit
describes employees clearly identifiable as a group and
when consideration of the traditional factors demon-
strates that the employees share a community of inter-
est,” an employer opposing this unit as inappropriate
because it excludes certain employees bears a heightened
burden of proving “that the included and excluded em-
ployees share an overwhelming community of interest.”
The phrase “overwhelming community of interest” is
familiar, but taken out of its ordinary context. In accre-
tion cases, where a party seeks to add a group of previ-
ously unrepresented employees to an existing bargaining
unit, the Board takes a restrictive approach in order to
assure that those employees are not unfairly deprived of
their right to vote on the question of representation. Ac-
cordingly, “accretion is found only when the employees
sought to be added to an existing bargaining unit have
little or no separate identity and share an overwhelming
community of interest with the preexisting unit to which
they are accreted.”14
Obviously, the paramount concern supporting a restric-
tive inclusion rule in accretion cases has no relevance to
initial appropriate unit determination cases, where any
employee included in the unit found appropriate will
have the opportunity to vote on the question concerning
representation. Nevertheless, the “overwhelming com-
munity of interest” test has infrequently crept into such
unit determinations. Most notably, in Lundy Packing,
314 NLRB 1042, 1043 (1994), the Board reversed the
Regional Director and found that the disputed group of
technicians did not have to be included in the petitioned-
for unit of service and maintenance unit employees be-
cause the technicians did not share such an overwhelm-
ing community of interest with those employees. The
Fourth Circuit emphatically disagreed with this test, and
its resulting exclusion of the technicians. The court stat-
ed

The Board . . . adopted a novel legal standard
which effectively accomplished the exclusion. Under
this new standard, any union-proposed unit is pre-
sumed appropriate unless an “overwhelming com-
munity of interest” exists between the excluded em-
ployees and the union-proposed unit: “Here, [the
Board] find[s] . . . that the technicians do not share
such an overwhelming community of interest with
the petitioned-for production and maintenance em-

14 E. I. Du Pont, Inc., 341 NLRB 607, 608 (2004), quoting Ready
Mix USA, Inc., 340 NLRB 946, 954 (2003).
ployees as to mandate their inclusion in the unit de-
spite the Petitioners’ objections.” Lundy Packing
Co., Inc., 314 NLRB 1042, 1043 (1994). By pre-
suming the union-proposed unit proper unless there
is “an overwhelming community of interest” with
excluded employees, the Board effectively accorded
controlling weight to the extent of union organiza-
tion. This is because “the union will propose the unit
it has organized.” Laidlaw Waste Systems, Inc. v.
NLRB, 934 F.2d 898, 900 (7th Cir.1991); see Conti-
nental Web Press, Inc. v. NLRB, 742 F.2d 1087,
1093 (7th Cir.1984) (“the fact that [ ] the union
wanted a smaller unit . . . could not justify the
Board’s certifying such a unit if it were otherwise
inappropriate”). Given the community of interest be-
tween the included and excluded employees here, it
is impossible to escape the conclusion that the
QA/LTs’ ballots were excluded “in large part be-
cause the Petitioners do not seek to represent them.”
Lundy Packing, 314 NLRB at 1046 (Member Ste-
phens, dissenting). In fact, the Board has as much as
admitted that it gave controlling weight to the Un-
ions’ proposal: “[A] unit including [quality control]
employees might also have been an appropriate unit
had such a unit been sought by the Petitioners.”
Lundy Packing, 314 NLRB at 1044.15

Particularly as applied to petitioned-for units that are
not presumptively appropriate—and a unit is not pre-
sumptively appropriate simply because it consists of em-
ployees who share a community of interest among them-
selves—the overwhelming community-of-interest test is
not materially different from the “same job, same place”
unit determination standard espoused by the dissent and
rejected by a Board panel majority in Wheeling Island
Gaming, supra.16 As explained there, in a correct appli-
cation of the traditional community of interest test, the
Board “‘never addresses, solely and in isolation, the
question whether the employees in the unit sought have
interests in common with one another. Numerous groups
of employees fairly can be said to possess employment
conditions or interests ‘in common.’ Our inquiry—
though perhaps not articulated in every case—necessarily
proceeds to a further determination whether the interests
of the group sought are sufficiently distinct from those of
other employees to warrant the establishment of a sepa-
rate unit.’ Newton-Wellesley Hospital, 250 NLRB 409,
411–412 (1980) (emphasis added).” Id. slip op. at 1 fn. 2.

15 NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir. 1995)
(citation omitted).
16 Today’s majority includes dissenting Member Becker from Wheel-
ing Island Gaming, as well as Chairman Liebman, who was in the
majority there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
Not only does the majority here effectively overrule
Newton-Wellesley in this case, but they distort the mean-
ing of the aforementioned passage by suggesting it sup-
ports ending an appropriate unit analysis upon finding
that the petitioned-for unit employees share a community
of interest among themselves. The “overwhelming
community of interest” test they endorse cannot be rec-
onciled with the traditional appropriate unit test identi-
fied in Newton-Wellesley, and provides no answer to the
criticism of that test voiced by the Lundy court.17 The
majority concludes that its approach comports with Sec-
tion 9(b)’s statement that the Board shall ensure employ-
ees the fullest freedom in exercising their rights, stress-
ing that among these rights is the right to self-organize.18
However, as the Lundy court made clear, Board effectua-
tion of this right may not go so far as to give controlling
weight to extent of organization, in contravention of Sec-
tion 9(c)(5).19
This is not an abstract debate over legal hokum. The
difference between the Park Manor test that should be
imposed to determine the appropriateness of the peti-
tioned-for CNA unit and the “overwhelming community
of interest” test that my colleagues impose has vast prac-
tical ramifications. As mentioned by the Lundy court,
this test obviously encourages unions to engage in in-
cremental organizing in the smallest units possible. In
the present case, it seems quite clear that, if petitioned
for, under the majority’s test there could at least be sepa-
rate appropriate units found for RNs, LPNs, CNAs,
cooks, dietary aides, business clericals, and residential
activity assistants. In Park Manor itself, there could
have been separate appropriate units for RNs, LPNs,

17 To the extent that the majority relies on the court’s opinion in Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008), I re-
spectfully suggest that that case was wrongly decided, based both on an
inapt analogy to accretion law and inapposite precedent. It is also
arguably inconsistent with the circuit’s own precedent. See Sundor
Brands, Inc. v. NLRB, 168 F.3d 515 (1999).
18 The majority refers to the constitutional freedom of association to
support the proposition that extent of self-organization is of paramount
concern in unit determinations. There has never been any serious sug-
gestion that the right to organize is unrestrained. Nor has any constitu-
tional infirmity been raised or found in the Act’s mandates that the
Board must decide in each case whether a unit is appropriate for bar-
gaining or that the extent of organizing not be controlling.
19 See, e.g., American Hospital Assn., 499 U.S. at 611 (Congress
“chose not to leave [appropriate unit decisions] up to employees or
employers alone.”).
kitchen employees, laundry employees, housekeepers,
activities assistants, maintenance employees, office cleri-
cals, and guards. This would represent an extraordinary
fragmentation of the work force for collective-bargaining
purposes, a situation that cannot lend itself to the labor
relations stability to which my colleagues so often dedi-
cate their efforts.
IV. CONCLUSION
It is not difficult to perceive my colleagues’ overall
plan here. First, in this case, they define the test of an
appropriate unit by looking only at whether a group of
employees share a community of interest among them-
selves and make it virtually impossible for a party oppos-
ing this unit to prove that any excluded employees
should be included. This will in most instances encour-
age union organizing in units as small as possible, in
tension with, if not actually conflicting with, the statutory
prohibition in Section 9(c)(5) against extent of organiza-
tion as the controlling factor in determining appropriate
units. Next, by proposing to revise the rules governing
the conduct of representation elections to expedite elec-
tions and limit evidentiary hearings and the right to
Board review, the majority seeks to make it virtually
impossible for an employer to oppose the organizing
effort either by campaign persuasion or through Board
litigation.20
This initiative puts our agency beyond the pale of rea-
soned adjudication. It enlists the Board’s Regional Of-
fices, who will have little option but to find almost any
petitioned-for unit appropriate, in a campaign to support
union organization where the recent independent efforts
of unions to persuade employees to join or remain with
them in large numbers have failed. I fully recognize that
partisan shifts in Board membership are most often fol-
lowed by shifts in the law that favor unions or employ-
ers, but I do not think it appropriate to bend the law or
the Agency’s service so far as my colleagues propose to
do.

20 See Notice of Proposed Rulemaking on Election Procedures, 76
Fed. Reg. 36812 (June 22, 2011), and my dissent therein at 36829–
36833. One could reasonably argue that the burden imposed here on
employers contesting the appropriateness of a petitioned-for unit repre-
sents a premature and improper partial implementation of the proposed
election rules.