NLRB Issues Controversial Decision On Standard For Unit Appropriateness Determinations

Overturns Precedent and Establishes a Potential New Community of Interest Test

On August 26, 2011, in the third major decision released on Chairman Wilma Liebman's last day at the National Labor Relations Board ("NLRB" or "the Board"), the Board announced its 3–1 decision to reverse Park Manor Care Center,¹ which had defined the standard for determining units in nonacute health care facilities for 20 years. See Specialty Healthcare & Rehabilitation Center of Mobile.² In addition, despite the Congressional policy against proliferation of units in the health care industry that informed the Park Manor standard, the Board also potentially made it easier for unions to petition for smaller units consisting of employees in the same job classification in nonacute facilities—and simultaneously harder for employers to argue that a larger unit is appropriate—by putting the burden on employers to show that employees in the larger unit "share an overwhelming community of