Specialty Healthcare and Rehabilitation Center of Mobile

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.