Specialty Healthcare and Rehabilitation Center of Mobile, (2011)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Petitioner. Case 152013RC20138773 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 traditional community-of-interest analysis. The Employer, however, contended that the only appropriate unit containing the CNAs consists of the CNAs plus all other nonprofessional service and maintenance employees at its facility. The Employer argued that the Regional Director 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 Board2019s adoption of a rule defining appropriate units in acute care hospitals. Because this case raises important issues concerning the Board2019s 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 No. 56 (2010). After carefully considering the arguments of the parties and interested amici, we have concluded that the Park Manor approach to determining if a proposed bargaining 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 community-of-interest approach in this context. In addition, we reiterate and clarify that, in cases in which a party contends 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 employees 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 parttime CNAs at the Employer2019s nursing home and rehabilitation facility constituted an appropriate unit in which to conduct an election. Thereafter, in accordance with Section 102.67 of the Board2019s Rules and Regulations, the Employer filed a timely request for review of the Regional Director2019s decision contending that the Regional Director erred in finding the petitioned-for unit appropriate. On February 19, 2009, the then two-member Board granted the Employer2019s Request for Review, and, on August 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 No. 56. The notice requested that the parties and interested amici address issues raised by the Regional Director2019s finding that the petitioned-for unit of CNAs at the Employer2019s nursing home is appropriate. The Board asked the parties and amici to address the following questions: (1) What has been their experience applying the 201cpragmatic or empirical community of interests approach201d 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 encouraged 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 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 201creadily identifiable as a group whose similarity of function and skills create a community of interest.201d [Id., slip op. at 120132.] Briefs in response to the Board2019s invitation were filed by a broad range of interested parties.1 1 The Employer and the Petitioner filed briefs, as did amici AFL2013 CIO; Service Employees International Union (SEIU); International III. FACTS The Employer operates a nursing home and rehabilitation 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 approximately 86 nonsupervisory, nonprofessional service and maintenance employees, including the CNAs.2 There is no history of collective bargaining by any of the Employer2019s employees. The Employer2019s 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 recreation/activity room; administrative, business, and other offices; the employee break room; supply and maintenance rooms; and the lobby/reception area. The remaining three floors are the nursing floors, each consisting of residents2019 rooms on two wings, a nursing station, a sun porch/activity room, and a supply/storage room. For organizational purposes, the nursing home2019s employees are placed in one of eight separate departments: nursing, nutrition services, resident activity, maintenance, administration, medical records, central supply, and social services. The facility2019s 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. CNAsThe 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 desig Union of Operating Engineers (IUOE); American Health Care Association and National Center for Assisted Living; American Hospital Association and American Society for Healthcare Human Resources Administration; Chamber of Commerce of the United States; Senators Michael 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 Association; Georgia Chamber of Commerce; National Association of Waterfront Employers; and Douglas Motter (an individual). 2 The Employer2019s 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, occupational, and physical therapists working at the facility are not directly employed by the Employer, their unit placement is not at issue in this proceeding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nated as charge nurses. LPNs in turn are supervised by RNs designated as unit managers, who report to the nursing 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 residents with such daily functions as grooming, oral hygiene, 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 residents2019 vital signs and monitor their daily food and fluid intake and output. CNAs complete an 201cActivities for Daily Living201d flow sheet on which they record residents2019 vital signs and daily functions and activities, such as bathing, dressing, and walking. CNAs also make note of the services and therapies that residents receive on their medical charts, and they document residents2019 progress or lack thereof. CNAs are the only employees other than RNs and LPNs who are certified or licensed to provide certain aspects of residents2019 care, such as feeding and positioning. The Employer has designated several CNAs as 201crestorative CNAs.201d These CNAs...
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