Kindred Nursing Centers East, LLC v. National Labor Relations Board

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0231p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KINDRED NURSING CENTERS EAST, LLC, dba

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Kindred Transitional Care and Rehabilitation

-Mobile, fka Specialty Healthcare and -

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Nos. 12-1027/1174

Rehabilitation Center of Mobile,

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>

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Petitioner/Cross-Respondent,

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v.

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Respondent/Cross-Petitioner, -

NATIONAL LABOR RELATIONS BOARD,

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UNITED STEEL, PAPER AND FORESTRY,

RUBBER MANUFACTURING, ENERGY, ALLIED -

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INDUSTRIAL AND SERVICE WORKERS

Intervenor. -

INTERNATIONAL UNION,

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On Petition for Review and Cross Application for

Enforcement of a Decision and Order of the

National Labor Relations Board.

No. 15-CA-68248.

Argued: January 23, 2013

Decided and Filed: August 15, 2013

Before: MARTIN and ROGERS, Circuit Judges; TARNOW, District Judge*

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COUNSEL

ARGUED: Matthew J. Ginsburg, AFL-CIO LEGAL DEPARTMENT, Washington,

D.C., for Intervenor. Charles P. Roberts III, CONSTANGY, BROOKS & SMITH,

Winston-Salem, North Carolina, for Petitioner/Cross-Respondent. Robert J. Englehart,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-

Petitioner. ON BRIEF: Matthew J. Ginsburg, AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS LEGAL

*

The Honorable Arthur J. Tarnow, Senior District Judge for the Eastern District of Michigan,

sitting by designation.

1

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 2

DEPARTMENT, Washington, D.C., for Intervenor. Charles P. Roberts III,

CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, Clifford H.

Nelson, Jr., CONSTANGY, BROOKS & SMITH, Atlanta, Georgia, Edward Goddard,

KINDRED HEALTHCARE, Wrentham, Massachusetts, for Petitioner/Cross-

Respondent. Robert J. Englehart, Amy H. Ginn, Linda Dreeben, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Thomas

V. Walsh, JACKSON LEWIS LLP, White Plains, New York, Ronald E. Meisburg,

James F. Segroves, Lawrence Z. Lorber, PROSKAUER ROSE LLP, Washington, D.C.,

Mark Theodore, PROSKAUER ROSE LLP, Los Angeles, California, Jonathan C. Fritts,

MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., Michael J. Hunter,

HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, Ryan

Griffin, SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C.,

Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for

Amici Curiae.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Under federal labor law, workers in

the private sector who wish to be represented by a union must petition the National

Labor Relations Board to hold an election to determine if a majority of the workers

wants union representation. Federal labor law gives the Board wide discretion to

delineate the “bargaining unit,” the term for the group of workers that will vote on union

representation. Kindred Nursing Centers East, LLC, a nursing home operator, has

petitioned for review of the Board’s order that a bargaining unit of Certified Nursing

Assistants “constitute[d] an appropriate unit.” Specialty Healthcare and Rehab. Ctr. of

Mobile, 357 N.L.R.B. No. 83, 2011 WL 3916077 at *2 (2011). The Board has petitioned

for enforcement of the order. The central issue in this case is whether the Board acted

within its discretion in deciding Specialty Healthcare. We conclude that it did, and we

therefore DENY Kindred’s petition for review and GRANT the Board’s cross-petition

for enforcement.

We derive the facts in this case from the Board’s opinion in Specialty

Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077 (2011), which we will call

Specialty Healthcare II to distinguish it from the Board’s previous case, Specialty

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Healthcare, 356 N.L.R.B. No. 56, 2010 WL 5195445 (2010), which we will call

Specialty Healthcare I.

Kindred operates a nursing home and rehabilitation center in Mobile, Alabama.

Specialty Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *2 (2011). There is

no history of collective bargaining at this nursing home. Id. The facility, which the

parties agree is a non-acute healthcare facility, consists of four floors and has beds for

about 170 residents. Id.

Kindred places its employees in one of eight separate departments: nursing,

nutrition services, resident activity, maintenance, administration, medical records,

central supply, and social services. Id. at *3. 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. Id. 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. Id.

The nursing department consists of fifty-three Certified Nursing Assistants

(CNAs) not including the Licensed Practical Nurses (LPNs) and Registered Nurses

(RNs). Id. The LPNs directly supervise the CNAs on each nursing wing. Id. The RNs

supervise the LPNs and report to the nursing director. Id. The CNAs work one of three

eight-hour shifts and work directly with up to seventeen residents each. Id. Kindred

typically assigns three to five CNAs to work on each nursing floor and usually assigns

each CNA to work in a particular area of a nursing floor. Id.

As for job duties, CNAs help residents with daily functions, such as grooming,

oral hygiene, bathing and dressing, and incontinence care. Id. CNAs get food trays for

residents who have their meals on a nursing floor and help these residents eat. Id. CNAs

turn and lift residents in their beds, move residents to their wheelchairs, assist with

walking short distances, and help them get around the facility. Id. CNAs also

accompany residents to appointments outside the nursing home. Id. CNAs take

residents’ vital signs and monitor their daily food and fluid intake and output. Id. CNAs

complete an “Activities for Daily Living” flow sheet on which they record the residents’

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 4

vital signs and daily functions and activities, such as bathing, dressing, and walking. Id.

CNAs also note on their medical charts the services and therapies that residents receive,

and note residents’ progress or lack thereof. Id. CNAs are the only employees other

than the RNs and LPNs who are certified or licensed to provide certain aspects of

residents’ care, such as feeding and positioning. Id.

Kindred has designated several CNAs as “restorative CNAs” who help residents

in therapeutic programs to maintain functions such as walking and eating or to increase

their range of motion. Id. The restorative CNAs also help residents with their meals in

the dining room and transport them back to their rooms after therapeutic activities or

meals. Id.

When a new resident comes to the nursing home, an interdisciplinary team of

employees from the nursing, nutrition-services, resident-activity, and social-services

departments assesses the new resident’s medical, dietary, and social needs. Id. The

CNAs attend these meetings and contribute to formulating the new resident’s care plan.

Id. CNAs may also attend additional meetings of the interdisciplinary team if a

resident’s care plan needs to be changed. Id. CNAs also attend in-service training

sessions. Id.

The CNAs retrieve food carts from the first floor kitchen and take them to their

assigned nursing floors for residents who eat meals in their rooms or on their floor’s sun

porch. Id. at *4. CNAs may contact the central-supply clerk if there is a shortage of

supplies on the floor, and the clerk may contact a CNA if the clerk has a question about

specific items that a resident under the CNA’s care may need. Id. The social-services

assistant may contact the CNA to get certain information about a resident, such as

whether the resident met with a particular doctor. Id.

Kindred prefers that its CNAs have a high-school diploma. Id. CNAs must be

certified by the state, with certification requiring completion of sixteen hours of

classroom training and seventy-two hours of general education. Id. The certification

course includes the basic components of caring for geriatric and incapacitated patients,

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 5

such as bathing, dressing, feeding, and the like. Id. To maintain their certification, the

state requires CNAs to periodically attend specialized training. Id.

Kindred pays the CNAs a starting wage of $8.50 per hour, and may pay them

raises of ten cents per hour for each year of experience up to fifteen years. Id. Kindred

pays the CNAs time-and-a-half for overtime work. Id. The CNAs’ immediate

supervisors evaluate the CNAs annually; the evaluation provides the basis for possible

pay increases (typically three percent) that the nursing home’s executive director must

approve. Id. The CNAs wear the same uniforms as the LPNs and RNs. Id. The Board

stated that the record did not show that any employees from other classifications had

transferred into a CNA position, although the record did show that one CNA transferred

to a unit-clerk position. Id.

Kindred sought to include in the bargaining unit with the CNAs about thirty-three

other employees whom it deems service and maintenance employees. Id. These

employees include: resident activity assistants, who design and lead individual and group

recreational activities for the residents; the social services assistant, who works with

residents and their families to identify residents’ needs and to resolve problems as they

arise; the staffing coordinator, who prepares work schedules for the nursing staff,

contacts replacement personnel as necessary, and determines which CNA will

accompany a resident to an appointment outside the nursing home; the maintenance

assistant, who performs routine maintenance, upkeep, and repair services on the

building, grounds and equipment; and the central-supply clerk, who maintains an

inventory of items used by each resident, and orders, receives, and stocks supplies. Id.

Kindred 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 maintains residents’ medical records

and prepares correspondence and reports; the data-entry clerk, who inputs in the

employer’s electronic-records system the residents’ care plans, physicians’ orders,

resident-cash logs and financial charges, and other resident information; a business-

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 6

office clerical; and a receptionist. Id. The Board noted that the record contained no

information about the business-office clerical or the receptionist. Id. at *20 n.4.

In general, the employees Kindred seeks to include in the bargaining unit report

to the managers of their respective departments. Id. at *5. The managers of all but one

of these departments report directly to the director of nursing. Id. None of the other

employees are in the nursing department and therefore none report to the RNs. Id. Most

of the classifications Kindred seeks to add to the bargaining unit have similar

educational requirements. Id. For example, cooks and dietary aids must have completed

the tenth grade. Id. Cooks must have a certification from the state, which they can get

by successfully completing a course taught by the local health department. Id. at *20

n.5. Employees in the remaining classifications must have a high-school degree or its

equivalent. Id. at *5. Activities assistants typically have only a high-school diploma

even though the job description states that the position requires a bachelor’s degree. Id.

at *20 n.6. The employer requires all employees to complete the same employment

application, go through the same hiring process, pass a drug test, and go through the

same new employee orientation. Id. at *5.

Kindred’s nursing home’s normal business hours are 8 a.m. to 4:30 p.m. Id.

Cooks and dietary aides typically work either of two shifts to cover the three daily meals,

with the first shift starting between 5 to 6 a.m. and covering breakfast and lunch, and the

later shift covering lunch and dinner. Id. 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. Id. The maintenance assistant works 7 a.m.

to 3 p.m. Id. None of the other employees staff the three 8-hour shifts that the CNAs

staff. Id. The employer pays all employees hourly and on a bi-weekly basis. Id. The

starting hourly wage rates are: $7 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. Id.

Like the CNAs, Kindred gives these employees annual evaluations under the

same appraisal system, and gives them the opportunity for wage increases based on

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favorable evaluations. Id. The employer makes all employees eligible for the same

benefits, such as: health and life insurance; retirement and profit-sharing plans; sick

leave and vacations; tuition reimbursement; and performance-based special awards

programs. Id. Kindred subjects all employees to the same personnel policies and

employee handbook. Id. Furthermore, all employees may purchase meals in the dining

room at the same prices; they all wear name badges; use the same parking lot, time

clock, break room, smoking area and bulletin boards; attend regular monthly meetings

as well as occasional group meetings and in-service training sessions; and are invited to

attend the annual holiday party and other social functions. Id. Dietary aides and the

maintenance assistant wear uniforms, but the uniform differs from the uniforms the

CNAs, LPNs, and RNs wear. Id.

The union petitioned to represent a unit of fifty-three full-time and regular part-

time CNAs. Id. at *2. At a proceeding before a hearing officer of the Board’s Region

15, Kindred argued that the bargaining unit should be expanded to include an additional

eighty-six non-supervisory, non-professional service and maintenance employees. Id.

Afterwards, Region 15's Regional Director issued a Decision 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 rehabilitation facility constituted an

appropriate unit in which to conduct an election. Id. at *1. The Region held the

election, and the union won. Id. Afterwards, Kindred filed a timely request for Board

review of the Regional Director’s decision, arguing that the Regional Director had erred

in finding the petitioned-for unit appropriate. Id. The Board granted review. Id.

Afterwards, in Specialty Healthcare I, the Board invited the parties in the case

and interested amici to file briefs to address the issues raised in the case. The Board

asked the parties and amici to address in their briefs some or all of the following eight

questions: (1) What had been their experience applying the “pragmatic or empirical

community of interests approach” of Park Manor Care Center, 305 N.L.R.B. 872 (1991)

and subsequent cases?; (2) What factual patterns had emerged in non-acute healthcare

facilities illustrating what units are typically appropriate?; (3) How had applying Park

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Manor hindered or encouraged employee free choice and collective bargaining in non-

acute healthcare 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

the proposed units in non-acute healthcare facilities?; (5) Would the proposed unit of

CNAs be appropriate under Park Manor?; (6) If such a unit would not be appropriate

under Park Manor, should the Board reconsider the test set forth in Park Manor?; (7)

Where there is no history of collective bargaining, should the Board hold that a unit of

all employees performing the same job at a single facility is presumptively appropriate

in non-acute healthcare facilities?; (8) Should the Board find a proposed unit appropriate

if, as found in American Cyanamid Co., 131 N.L.R.B. 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.”? Specialty Healthcare I at *2. The employer and

amici then filed briefs.

The Board then decided the case before us, Specialty Healthcare II, which

purported to do three things: (1) overrule Park Manor Care Center, 305 N.L.R.B. No.

135 (1991), a test the Board had applied to determine the appropriateness of a bargaining

unit in a nursing home; (2) return to applying the “traditional community-of-interest

approach” to nursing homes; and (3):

reiterate and clarify that, in cases in which a party contends that a

petitioned-for unit containing employees readily identifiable as a group

who share a community of interest is nevertheless inappropriate because

it does not contain additional employees, the burden is on the party so

contending to demonstrate that the excluded employees share an

overwhelming community of interest with the included employees.

Specialty Healthcare II, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *1 (2011)

(emphasis added).

Kindred refused to bargain. The union filed an unfair-labor-practice charge, and

the Board found that Kindred had violated the Act. An employer cannot get direct

judicial review of the Board’s bargaining unit determination—instead, it must refuse to

bargain with the union and then raise the issue of the unit’s appropriateness in a

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subsequent unfair-labor-practice proceeding. Pittsburgh Plate Glass Co. v. NLRB, 313

U.S. 146, 154 (1941) (“While the ruling of the Board determining the appropriate unit

for bargaining is not subject to direct review under the statute, the ruling is subject to

challenge when, as here, a complaint of unfair practices is made predicated upon the

ruling.”) (citing Am. Fed’n of Labor v. N.L.R.B., 308 U.S. 401, 408–11 (1940)). Kindred

then appealed the Board’s decision to this court pursuant to 29 U.S.C. section 160(f).

We have jurisdiction over this case—even though it arose outside our Circuit—because

of section 160(f)’s quirk that allows review in the Circuit in which the person aggrieved

by the Board’s order resides or transacts business. 29 U.S.C. § 160(f). Kindred’s

corporate headquarters are in Louisville, KY. Therefore, we have jurisdiction over this

appeal.

We must uphold the Board’s bargaining-unit determination “unless the employer

establishes that it is arbitrary, unreasonable, or an abuse of discretion.” Mitchellace, Inc.

v. N.L.R.B., 90 F.3d 1150, 1157 (6th Cir. 1996) (citing Bry-Fern Care Ctr., Inc. v.

N.L.R.B., 21 F.3d 706, 709 (6th Cir. 1994); N.L.R.B. v. Hardy-Herpolsheimer, 453 F.2d

877, 878 (6th Cir. 1972)). We review deferentially the Board’s determination of an

appropriate bargaining unit because “[t]he Board has wide discretion in determining the

limits of an appropriate bargaining unit.” Indianapolis Glove Co., Inc. v. N.L.R.B.,

400 F.2d 363, 367 (6th Cir. 1968). We have even gone so far as to say that “[n]ormally

the Board exercises a discretion bordering on finality in determining the unit appropriate

for bargaining under Section 9(b) of the Act, 29 U.S.C. 159(b).” Uyeda v. Brooks,

365 F.2d 326, 330 (6th Cir. 1966) (citations omitted).

Furthermore, we must uphold the Board’s interpretation of the Act if it is

“reasonably defensible[;]” we may not reject the Board’s interpretation “merely because

the courts might prefer another view of the statute.” Ford Motor Co. v. N.L.R.B.,

441 U.S. 488, 497 (1979) (citing N.L.R.B. v. Iron Workers, 434 U.S. 335, 350 (1978)).

In exercising its discretion, however, the Board “must cogently explain why it has

exercised its discretion in a given manner.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (citations omitted).

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 10

On appeal, Kindred does not argue that the Board has abused its discretion in

overruling Park Manor, which it says is a “non-issue.” Rather, Kindred argues that the

Board has abused its discretion because Specialty Healthcare II does the following four

things: (1) adopts a new approach and does not return to applying the traditional

community-of-interest approach; (2) does not “reiterate and clarify” the law by adopting

the overwhelming-community-of-interest test, but inappropriately imports this test from

another area of labor law; (3) violates section 9(c)(5) of the National Labor Relations

Act in its application of the traditional community of interest test and adoption of the

overwhelming-community-of-interest test; and (4) makes all of these changes through

adjudication instead of rulemaking. We address each argument in turn.

First, we address Kindred’s argument that Specialty Healthcare II adopts a new

approach and does not return to applying the traditional community-of-interest approach.

Kindred argues that Specialty Healthcare II represents a material change in the Board’s

jurisprudence under section 9 of the Act.

Section 9(b) of the Act gives the Board wide discretion to determine an

appropriate bargaining unit, providing that “[t]he Board shall decide in each case

whether, in order to assure to employees the fullest freedom in exercising the rights

guaranteed by this subchapter, the unit appropriate for the purposes of collective

bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof[.]”

29 U.S.C. § 159(b). The United States Supreme Court has consistently held that

“[s]ection 9(b) of the Act confers upon the Board a broad discretion to determine

appropriate units.” Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491 (1947). The

Board’s discretion is broad indeed; the Court has stated that “[t]he issue as to what unit

is appropriate for bargaining is one for which no absolute rule of law is laid down by

statute, and none should be by decision[,]” because “[i]t involves of necessity a large

measure of informed discretion and the decision of the Board, if not final, is rarely to be

disturbed.” Id. As the Court observed more recently, a court is “not authorized to bind

the Board in ways not mandated by Congress.” NLRB v. Action Auto., Inc., 469 U.S.

490, 497 (1985).

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 11

Because of the wide discretion given to the Board by statute, judicial review of

bargaining-unit determinations is indeed limited. Therefore, we have held that, “[i]n

making a unit determination, the Board must select an ‘appropriate’ bargaining unit[,]”

among what is often a range of appropriate bargaining units, such that “‘the Board is not

required to select the most appropriate unit.’” NLRB v. ADT Sec. Servs., Inc., 689 F.3d

628, 633 (6th Cir. 2012) (quoting Bry-Fern, 21 F.3d at 709 (citing Am. Hosp. Ass’n v.

NLRB, 499 U.S. 606, 610 (1991))). We are not the only court to take a deferential

approach. Judge Posner remarked that “[t]he courts’ obeisant attitude” towards the

Board’s unit determinations “is epitomized by the frequent statement that the Board need

only choose an appropriate unit—its choice need not be the most appropriate unit.”

Cont’l Web Press, Inc. v. NLRB, 742 F.2d 1087, 1089 (7th Cir. 1984) (citations omitted).

Although section 9(b) provides no other guidance on how the Board should use

its authority to determine whether a bargaining unit is appropriate, “[t]he Board does not

exercise this authority aimlessly; in defining bargaining units, its focus is on whether the

employees share ‘a community of interest.’” Action Auto., Inc., 469 U.S. at 494 (1985)

(citations omitted). The community-of-interest test “requires simply that groups of

employees in the same bargaining unit ‘share a community of interests sufficient to

justify their mutual inclusion in a single bargaining unit.’” ADT Security Servs.,

689 F.3d at 633 (quoting Bry-Fern, 21 F.3d at 709). The test includes the following five

factors: “(1) similarity in skills, interests, duties and working conditions; (2) functional

integration of the plant, including interchange and contact among the employees; (3) the

employer’s organization and supervisory structure; (4) the bargaining history; and (5)

the extent of union organization among the employees.” Id. at 633-34 (quoting Bry-

Fern, 21 F.3d at 709).

Following the United States Supreme Court, we have held that “[i]t is within the

Board’s purview . . . to develop standards for ascertaining whether one unit is more

appropriate than another.” ADT Security Servs., 689 F.3d at 636 (citing Am. Hosp. Ass’n,

499 U.S. at 611–12). It follows, then, that it is within the Board’s purview to choose to

follow one of its precedents or reject another. An agency may depart from its

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 12

precedents, and provided that “the departure from precedent is explained, our review is

limited to whether the rationale is so unreasonable as to be arbitrary and capricious.”

State of Mich. v. Thomas, 805 F.2d 176, 184 (6th Cir. 1986) (citing West Coast Media,

Inc. v. F.C.C., 695 F.2d 617, 620–21 (D.C.Cir. 1982), cert. denied, 464 U.S. 816

(1983)). “An administrative agency may reexamine its prior decisions and may depart

from its precedents provided the departure is explicitly and rationally justified.” Id.

(citing Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808

(1973) (plurality opinion); Ohio Fast Freight, Inc. v. United States, 574 F.2d 316, 319

(6th Cir. 1978); Am. Trucking Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 387 U.S.

397, 416 (1967) (administrative agencies are “neither required nor supposed to regulate

the present and the future within the inflexible limits of yesterday.”)).

Here, the Board has cogently explained why it adopted the approach it did in

Specialty Healthcare II. The Board explained that the “first and central right set forth

in Section 7 of the Act is the employees’ ‘right to self-organization.’” Specialty

Healthcare II, 357 N.L.R.B. No. 83, 2011 WL 3916077, at * 12. The Board further

explained that “‘[s]ection 9(b) of the Act directs the Board to make appropriate unit

determinations which will ‘assure to employees the fullest freedom in exercising rights

guaranteed by this Act.’ i.e. the rights of self-organization and collective bargaining.’”

Id. (quoting Fed. Elec. Corp., 157 N.L.R.B. 1130, 1132 (1966)). If the Board believes

that it can best fulfill its statutory duty by adopting a test from one of its precedents over

another, then the Board does not abuse its discretion. Indeed, it is a general tenet of

administrative law that “[a]n agency’s interpretation of its own precedents receives

considerable deference” from a reviewing court. Aburto-Rocha v. Mukasey, 535 F.3d

500, 503 (6th Cir. 2008) (citing NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d 794, 799

(D.C.Cir.2007)).

Moreover, in Specialty Healthcare I, the Board did explain why it might be

modifying its approach to initial bargaining-unit determinations by stating that its

standards for determining if a proposed unit is an appropriate unit have, in the long-term

care industry and more generally, “long been criticized as a source of unnecessary

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litigation.” Specialty Healthcare I, 356 N.L.R.B. No. 56, 2010 WL 5195445, at *4

(2010). The Board quoted the bipartisan Commission on the Future of Worker-

Management Relations as having reported, in 1994, that “parties engage in litigation

over the scope of the unit for tactical purposes such as to delay an election.” Id. Yet the

Board itself has often recognized the “‘Act’s policy of expeditiously resolving questions

concerning representation.’” Id. (quoting Northeastern University, 261 NLRB 1001,

1002 (1982)).

Because Specialty Healthcare II adopted a community-of-interest test based on

some of the Board’s prior precedents, and because it did explain its reasons for doing so,

the Board did not abuse its discretion in applying a version of its traditional community-

of-interest test to find a CNA-only bargaining unit to be appropriate. Rather, Specialty

Healthcare II clarified the community-of-interest test, which Judge Posner in one case

criticized as providing “little direction” and about which he expressed the wish that the

Board would give “a precise meaning[.]” Cont’l Web Press, 742 F.2d at 1090. The

Board did not abuse its discretion in clarifying the community-of-interest test.

We turn now to Kindred’s argument that the Board abused its discretion in

Specialty Healthcare II’s adoption of the overwhelming-community-of-interest test.

Specialty Healthcare II also purported to clarify the showing that an employer must

make if, after the Board’s initial unit determination, the employer argues that the

proposed unit must include more workers. Specialty Healthcare II claimed to “reiterate

and clarify” that:

in cases in which a party contends that a petitioned-for unit containing

employees readily identifiable as a group who share a community of

interest is nevertheless inappropriate because it does not contain

additional employees, the burden is on the party so contending to

demonstrate that the excluded employees share an overwhelming

community of interest with the included employees.

Specialty Healthcare II, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *1 (2011)

(emphasis added). Kindred argues that this overwhelming-community-of-interest

standard represents a “material change in the law” and is not a mere reiteration nor

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 14

clarification. But this is just not so. The Board has used the overwhelming-community-

of-interest standard before, so its adoption in Specialty Healthcare II is not new.

For example, in Jewish Hosp. Ass’n of Cincinnati, 223 N.L.R.B. 614, 617 (1976),

the Board held that a unit limited to service employees was inappropriate because of

their “overwhelming community of interest” with maintenance employees. In Lodgian,

Inc., 332 N.L.R.B. 1246, 1255 (2000), the Regional Director required inclusion in a unit

employees who shared “an overwhelming community of interest with the employees”

whom the union sought to represent.

Moreover, as the Board explained in Specialty Healthcare II, not only has the

Board used this test before, but the District of Columbia Circuit approved of the Board’s

use of it in Blue Man Vegas, LLC v. N.L.R.B., 529 F.3d 417 (D.C. Cir. 2008), which

denied review of the employer’s challenge to a bargaining-unit determination and

enforced the Board’s order.

In Blue Man, the union proposed a bargaining unit that excluded some

employees. Id. at 420. Although the employer argued that the excluded employees

should be included in the proposed bargaining unit, the Regional Director approved the

unit as the union had petitioned. Id. The court said that if the employer wants to

successfully challenge the unit by arguing that it should include more employees, then

“the employer must do more than show there is another appropriate unit because ‘more

than one appropriate bargaining unit logically can be defined in any particular factual

setting.’” Id. at 421 (quoting Country Ford Trucks, Inc. v. N.L.R.B., 229 F.3d 1184,

1189 (D.C. Cir. 2000)). Rather, the employer’s burden is to show that the prima facie

unit is truly inappropriate. Id. (citing Country Ford Trucks, 229 F.3d at 1189; Dunbar

Armored, Inc. v. N.L.R.B., 186 F.3d 844, 847 (7th Cir. 1999); Serramonte Oldsmobile,

Inc. v. N.L.R.B., 86 F.3d 227, 236 (D.C. Cir. 1996)). The court explained that a unit

would be truly inappropriate if, for example, there were no legitimate basis upon which

to exclude certain employees from it. Id. The court further explained that even if the

excluded employees shared a community of interest with the included employees, this

would not mean that there would be no legitimate basis upon which to exclude them.

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 15

Id. If the only appropriate bargaining unit were required to include all employees that

shared a community of interest, then there could be only one appropriate bargaining

unit—and nothing in the Act specifies this. Id. The court then explained that if the

excluded employees shared “an overwhelming community of interest with the included

employees, then there [would be] no legitimate basis upon which to exclude them from

the bargaining unit.” Id. (emphasis added).

Specialty Healthcare II adopted this standard, quoting Blue Man for the rule that

“the proponent of the larger unit must demonstrate that employees in the more

encompassing unit share ‘an overwhelming community of interest’ such that there ‘is no

legitimate basis upon which to exclude certain employees from it.’” Specialty

Healthcare II, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *16 (2011) (quoting Blue

Man, 529 F.3d at 421). If, in doing so, the Board overruled some of its precedents and

chose to follow a precedent approved by the Blue Man court, the Board may do so,

provided that it explains why.

In Specialty Healthcare II, the Board did cogently explain its reasons for

adopting the overwhelming-community-of-interest standard. The Board explained the

need to clarify its law, acknowledging that it had used some variation of a heightened

standard when a party (usually an employer) argues that the bargaining unit should

include more employees. The Board explained that it “has sometimes used different

words to describe this standard and has sometimes decided cases such as this without

articulating any clear standard.” Specialty Healthcare II, 357 N.L.R.B. No. 83, 2011

WL 3916077, at *17 (2011).

For example, in one case, the Board used the phrase “sufficiently distinct

community of interest.” Id. (quoting Seaboard Marine, 327 NLRB 556, 556 (1999))

(emphasis added). In another case, the Board held that a proposed unit was “‘too narrow

in scope in that it exclude[d] employees who share[d] a substantial community of

interest with employees in the unit sought.’” Id. (quoting Colorado Nat’l Bank of

Denver, 204 N.L.R.B. 243, 243 (1973) (emphasis added and footnote omitted by

Specialty Healthcare II opinion)). Specialty Healthcare II explained that “the use of

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 16

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.” Id. at *17. Nor, the Board continued,

does the use of slightly varying verbal formations “permit employers to order their

operations with a view toward productive collective bargaining should employees

choose to be represented.” Id. It is not an abuse of discretion for the Board to take an

earlier precedent that applied a certain test and to clarify that the Board will adhere to

this test going forward.

Furthermore, the Board acknowledged that its prior decisions did not expressly

impose the burden of proof on the party arguing that the petitioned-for unit was

inappropriate because the smallest appropriate unit would contain additional employees.

Id. at *20, n.28. But, the Board explained that allocating the burden in this manner is

appropriate for several reasons, one of which is that the employer is in “full and often

near-exclusive possession of the relevant evidence.” Id. The Board noted that it has

allocated the burden of proof for this reason in defining the scope of appropriate units

both pre- and post-election. Id. In support, the Board quoted Capri Sun, 330 N.L.R.B.

1124, 1126 n.8 (2000), as saying that it is “‘the [e]mployer that possesses and maintains

the records which would support its assertions. In these circumstances, the burden to

establish the time fame of the transfers is on the employer.’” Id. The Board quoted

Harold J. Becker Co., 343 N.L.R.B. 51, 52 (2004), as saying that, when an employer

argued that employees should be included in the unit as dual-function employees, the

Board held it was “the [e]mployer, of course, who [was] in the best position to establish

that status, because it ha[d] superior access to the relevant information.” Id. Because

the overwhelming-community-of-interest standard is based on some of the Board’s prior

precedents, has been approved by the District of Columbia Circuit, and because the

Board did cogently explain its reasons for adopting the standard, the Board did not abuse

its discretion in applying this standard in Specialty Healthcare II.

We now turn to Kindred’s argument that Specialty Healthcare II’s application

of either the American Cyanamid community-of-interest test, or of the overwhelming-

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 17

community-of interest test, violates section 9(c)(5) of the Act by making it impossible

for an employer to challenge the petitioned-for unit. In section 9(c)(5), Congress

provided a statutory limit on the Board’s discretion to define collective-bargaining units.

Section 9(c)(5) states that “the extent to which the employees have organized shall not

be controlling” in determining whether a unit is appropriate. 29 U.S.C. § 159(c)(5). The

Supreme Court has interpreted section 9(c)(5) as showing Congress’ intent to prevent

the Board from determining bargaining units based solely upon the extent of

organization, while at the same time allowing the Board to consider “the extent of

organization as one factor, though not the controlling factor, in its unit determination.”

N.L.R.B. v. Metro. Life Ins. Co., 380 U.S. 438, 441-42 (1965) (footnote omitted;

emphasis added).

But courts have struggled with what Congress meant by this provision; one court

even famously commented that “[s]ection 9(c)(5), with its ambiguous word ‘controlling,’

contains a warning to the Board almost too Delphic to be characterized as a standard.”

Local 1325, Retail Clerks Int’l Ass’n, AFL-CIO v. N.L.R.B., 414 F.2d 1194, 1199 (D.C.

Cir. 1969). Nevertheless, the court added, section 9(c)(5) “has generally been thought

to mean that there must be substantial factors, apart from the extent of union

organization, which support the appropriateness of a unit, although extent of

organization may be considered by the Board and, in a close case, presumably may make

the difference in the outcome.” Id. at 1199–200.

Section 9(c)(5) appears to have been added to prevent the Board from deciding

cases like Botany Worsted Mills, 27 N.L.R.B. 687 (1940), in which the Board deemed

a bargaining unit appropriate without applying any kind of community-of-interest

analysis, but solely on the basis that the workers wanted to organize a union. The Board

at that time acted as a union partisan, encouraging organizing. In Botany Worsted Mills,

the Board explained, in the course of deeming that a bargaining unit of workers in two

job classifications (wool sorters and trappers) constituted an appropriate bargaining unit,

that “[w]herever possible, it is obviously desirable that, in a determination of the

appropriate unit, [it] render collective bargaining of the [c]ompany’s employees an

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 18

immediate possibility.” Botany Worsted Mills, 27 N.L.R.B. at 690. The Board thus

made clear that it based its determination that the bargaining unit was appropriate on the

mere fact that the employees wanted to engage in collective bargaining. The Board

observed that there was “no evidence that the majority of the other employees of the

[c]ompany belong[ed] to any union whatsoever; nor has any other labor organization

petitioned the Board for certification as representative of the [c]ompany’s employees on

a plant-wide basis.” Id. The Board said that “[c]onsequently, even if, under other

circumstances, the wool sorters or trappers would not constitute the most effective

bargaining unit, nevertheless, in the existing circumstances, unless they are recognized

as a separate unit, there will be no collective bargaining agent whatsoever for these

workers.” Id. The Board concluded by stating that “in view of the existing state of labor

organization among the employees of the [c]ompany, in order to insure to the sorters or

trappers the full benefit of their right to self-organization and collective bargaining and

otherwise to effectuate the policies of the Act,” it found that the wool sorters or trappers

of the company “constituted an appropriate bargaining unit.” Id. Kindred characterizes

Specialty Healthcare II’s certification of a CNA-only unit as “a throw-back to the

discredited Botany Worsted Mills analysis.”

But Kindred’s argument misses the mark, because here, in Specialty Healthcare

II, the Board did not assume that the CNA-only unit was appropriate. Instead, it applied

the community-of-interest test from American Cyanamid to find that there were

substantial factors establishing that the CNAs shared a community of interest and

therefore constituted an appropriate unit—aside from the fact that the union had

organized it. Indeed, nowhere in its briefs, nor before the Board, did Kindred dispute

that the CNAs shared a community of interest. Therefore, the Board’s approach in

Specialty Healthcare II did not violate section 9(c)(5).

Nor does the overwhelming-community-of-interest test violate section 9(c)(5).

In this regard, we find persuasive the District of Columbia Circuit’s analysis in Blue

Man, which Specialty Healthcare II relied upon and quoted as holding that “‘[a]s long

as the Board applies the overwhelming community of interest standard only after the

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 19

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 organization not be given

controlling weight.’” Specialty Healthcare II, 357 N.L.R.B. No. 83, 2011 WL 3916077

at *20 n.25 (quoting Blue Man, 529 F.3d at 423) (emphasis added).

Here, in Specialty Healthcare II, the Board followed the Blue Man approach,

conducting its community-of-interest inquiry before requiring Kindred to show that the

other employees shared an overwhelming community of interest with the CNAs. It

would appear, then, that Specialty Healthcare II does not violate section 9(c)(5) of the

Act.

Lastly, we address Kindred’s argument that the Board abused its discretion by

making policy through adjudication rather than through notice-and-comment

rulemaking. Kindred argues that the Board must follow notice-and-comment rulemaking

if it wants to create a generally applicable rule for how the Board will determine an

appropriate bargaining unit. But the Board did not abuse its discretion in adopting a

generally applicable rule through adjudication instead of rulemaking because NLRB v.

Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974), holds both that “the

Board is not precluded from announcing new principles in an adjudicative proceeding

and that the choice between rulemaking and adjudication lies in the first instance within

the Board’s discretion.” Therefore, if the Board may announce a new principle in an

adjudication, it follows that it may choose to follow one of its already existing principles.

The United States Supreme Court did add that “there may be situations where the

Board’s reliance on adjudication would amount to an abuse of discretion or a violation

of the Act.” Id. at 294. But Kindred has not explained why the Board’s election of

adjudication in this case amounted to an abuse of discretion or a violation of the Act.

Moreover, as described above, the Board did solicit briefs from the parties and the

general public, thereby providing for the opportunity for the public’s input, which is one

of the hallmarks of notice-and-comment rulemaking under the Administrative Procedure

Act.

Nos. 12-1027/1174 Kindred Nursing v. N.L.R.B. Page 20

We DENY Kindred’s petition for review and GRANT the Board’s cross-petition

for enforcement.