NOTICE: This opinion is subject to formal revision before publication in the

NOTICE: This opinion is subject to formal revision before publication in the

bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.

20570, of any typographical or other formal errors so that corrections can

be included in the bound volumes.

Specialty Healthcare and Rehabilitation Center of

Mobile and United Steelworkers, District 9, Petitioner. Case 15–RC–8773

December 22, 2010

BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,

PEARCE, AND HAYES

NOTICE AND INVITATION TO FILE BRIEFS

On February 19, 2009, the Board granted the Employer’s Request for Review in the above-captioned

case. 1 The Board invites the filing of briefs in order to

afford the parties and interested amici the opportunity to

address the issues raised in this case.

The Petitioner seeks to represent a unit of certified

nursing assistants (CNAs) at the Employer’s nursing

home. The Employer contends that the only appropriate

unit consists of all nonprofessional service and maintenance employees. In addition to CNAs, the Employer

would include activity assistants, dietary aides and

cooks, the social services assistant, the staffing coordinator, the maintenance assistant, the central supply clerk,

the medical records clerk, the data entry clerk, the business office clerical, and the receptionist. The Regional

Director found appropriate the petitioned-for unit of

CNAs.

In 1989, the Board promulgated a final rule regarding

appropriate bargaining units in the health care industry.

Although the original rule encompassed both acute care

hospitals and nursing homes, the final rule was limited to

acute care facilities, and the Board determined that eight

units, or combinations of those units, were appropriate at

those facilities except in extraordinary circumstances. 2

The Board decided that it would continue to determine if

proposed units were appropriate in nursing homes and

other nonacute care facilities “by adjudication.” Rule

103.30(g).

In Park Manor Care Center, 305 NLRB 872 (1991),

the Board faced the question of the proper standard for

determining whether units are appropriate in nursing

homes (and, by extension, other nonacute care facilities)

after the promulgation of the acute care hospital unit

1

The Board affirmed the grant of review on August 27, 2010.

See Collective-Bargaining Units in the Health Care Industry, Notice of Proposed Rulemaking and Notice of Hearing, reprinted at 284

NLRB 1516 (1987); Second Notice of Proposed Rulemaking, reprinted

at 284 NLRB 1528 (1988); and Final Rule, 103.30, reprinted at 284

NLRB 1580 (1989). The rule was upheld by the Supreme Court. See

American Hospital Assn. v. NLRB, 499 U.S. 606 (1991).

2

356 NLRB No. 56

rules. In answering that question, the Board observed

“that its decision to determine units by rulemaking reflected a desire to replace earlier doctrinal applications

with formulation of units based on the realities of the

workplace, as learned from evidence presented during

the rulemaking proceedings.” Id. at 875. The Board

indicated that in nonacute health care facilities as well it

preferred “to take a broader approach utilizing not only

‘community of interests’ factors but also background

information gathered during rulemaking and prior precedent.” Id. Under that approach, referred to as the

“pragmatic” or “empirical” community-of-interests test,

the Board considers, in addition to traditional community

of interest factors, information elicited in its rulemaking

proceedings, as well as Board precedent pertaining to the

type of facility involved or the type of unit sought. Id.

and fn. 16. 3 The Board specifically noted its desire “that

after various units have been litigated in a number 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 appropriate.’’ Id. (quotation marks and citations deleted).

Consistent with the Board’s statement in Park Manor,

supra, the Board continues to believe that it is its obligation under the Act to continually evaluate whether its

decisions and rules are serving their statutory purposes.

This is particularly true of decisions such as Park Manor,

where the Board adopted a new approach to determining

whether units are appropriate in health care facilities not

covered by its newly-promulgated rule, but extends as

well to the procedures and standards for determining

whether proposed units are appropriate in all industries—

a critical and necessary prerequisite for resolving questions concerning representation.

For these reasons, the parties and interested amici are

invited to file briefs addressing the issues raised in this

case. Specifically, the parties and amici in their briefs

should address some or all of the following questions:

(1) What has been their experience applying the “pragmatic or empirical community of interests approach” of

Park Manor and subsequent cases. (2) What factual patterns have emerged in the various types of nonacute

health care facilities that illustrate what units are typically appropriate. (3) In what way has the application of

Park Manor hindered or encouraged employee free

choice and collective bargaining in nonacute health care

facilities. (4) How should the rules for appropriate units

3

The Board applied the same test to other nonacute care facilities.

See, e.g., CGE Caresystems, 328 NLRB 748 (1999); Charter Hospital

of Orlando South, 313 NLRB 951 (1994).

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

in acute health care facilities set forth in Section 103.30

be used in determining the appropriateness of proposed

units in nonacute health care facilities. (5) Would the

proposed unit of CNAs be appropriate under Park

Manor. (6) If such a unit is not appropriate under Park

Manor, should the Board reconsider the test set forth in

Park Manor. (7) Where there is no history of collective

bargaining, should the Board hold that a unit of all employees performing the same job at a single facility is

presumptively appropriate in nonacute health care facilities. Should such a unit be presumptively appropriate as a

general matter. (8) Should the Board find a proposed unit

appropriate if, as found in American Cyanamid Co., 131

NLRB 909, 910 (1961), the employees in the proposed

unit are “readily identifiable as a group whose similarity

of function and skills create a community of interest.”

In answering these questions, the parties are invited to

submit empirical and practical descriptions of their experience under Park Manor.

Briefs shall be filed with the Board in Washington,

D.C., on or before February 22, 2011. The parties may

file responsive briefs on or before March 8, 2011, which

shall not exceed 10 pages in length. No other responsive

briefs will be accepted. The parties and amici should file

briefs electronically at http://mynlrb.nlrb.gov/efile. If

assistance

is

needed

in

filing

through

http://mynlrb.nlrb.gov/efile, please contact Lester A.

Heltzer, Executive Secretary, National Labor Relations

Board.

We believe that it is desirable to ascertain the positions

of interested parties and to solicit information from such

parties before addressing an important question of statutory construction and public policy. Our rationale follows:

The long-term care industry in the United States, indeed around the world, has undergone a radical transformation in the past 20 years in the face of an aging population, changing consumer preferences relating to the

form and location of long-term care, and a more general

restructuring of the provision of health care, most importantly, a drastic reduction in the average length of stays

in acute care hospitals. 4 As the Henry J. Kaiser Family

Foundation reported in 2007, “Over the past 20 years,

4

Dept. of Health and Human Serv., Ctrs. for Medicare & Medicaid

Serv., Nursing Home Data Compendium, at ii (2009) (“[T]he US population of persons aged 65 and over increased by 12.5% from 1999 to

2008 . . . .”); McCormick & Chulis, Growth in Residential Alternatives

to Nursing Homes: 2001, 24 Health Care Financing Rev. 143 (2003)

(noting the “proliferation of facility-like residential alternatives to

nursing homes”); Cromwell, Donoghue, & Gilman, Expansion of Medicare’s Definition of Post-Acute Care Transfers, 24 Health Care Financing Rev. 95 (2002) (documenting earlier discharges from acute care

facilities).

nursing home care has changed a great deal.” 5 Moreover, “[t]here has been a proliferation of facility-like

residential alternatives to nursing homes.” 6 Indeed, as

our dissenting colleague himself notes, the Board did not

resolve the question of appropriate units in long-term

care facilities when it engaged in rulemaking ultimately

limited to acute health care facilities in 1989 because of

“evidence of rapid transition in the industry.” In addition, employment in long-term care has experienced

dramatic growth in the last 20 years and that trend is projected to continue. 7 Finally, long-term care employees

have demonstrated a persistent interest in invoking the

statutory process for obtaining representation, filing almost 3000 petitions under Section 9 of the Act during the

last decade. Despite these facts and our statutory duty to

continually reconsider how the terms of the Act should

be applied to ever changing industries, the dissent would

have us close our eyes to these changes and blindly continue to apply a 20-year-old standard without even considering the possibility that it should be revised. 8 Such

an approach is contrary to our statutory charge.

We strongly believe that asking all interested parties to

provide us with information and argument concerning

the question of statutory construction raised in this case

is the fairest and soundest method of deciding whether

our rules should remain the same or be changed and, if

the latter, what the new rules should be. Our dissenting

colleague expresses a deep and, we believe, unmerited

skepticism about the adversary process and the value of

hearing from interested parties—“[p]redictably, what we

will receive will be mostly subjective or partisan justifi5

Wiener, et al., Nursing Home Care Quality: Twenty Years After

the Omnibus Budget Reconciliation Act of 1987, at 9 (2007). Indeed,

the entire “health care industry has undergone dramatic changes in the

past 20 years.” Pindus & Greiner, The Effects of Health Care Industry

Changes on Health Care Workers and Quality of Patient Care (1997),

available at http://www.urban.org/publications/407308.html.

6

McCormick & Chulis at 143.

7

BLS, Employment, Hours, and Earnings from the Current Employment

Statistics

Survey

(National),

at

http://data.bls.gov/PDQ/serlet/SurveyOutputServlet (viewed Nov. 26, 2010).

8

Unlike the dissent, we decline to address the merits of the case before receiving the briefs from all interested parties we solicit today

except to note two facts. First, the current standard applicable to longterm care facilities articulated in Park Manor was described by the

Board in that case as the “‘pragmatic or empirical community of interests’ approach.” Id. at 875 fn. 16. So formulated, that approach cannot

possibly be described as a model of clarity, particularly given that the

words “pragmatic” and “empirical” are not synonymous. Second,

despite our dissenting colleague’s determined effort to paint our simple

solicitation of views and supporting information from interested parties

in partisan terms, nothing in the questions we have asked interested

parties to address suggests that the Board is considering in any manner

increasing the weight given to “the extent to which employees have

organized,” much less making it “controlling” as proscribed by Sec.

9(c)(5) of the Act.

SPECIALTY HEALTH CARE & REHABILITATION CENTER OF MOBILE

cation for changing the law rather than any useful information responding to real concerns.” We believe employers actually engaged in operating long-term care

facilities and unions that represent or are seeking to represent employees laboring in such facilities as well as

other potentially interested parties, such as scholars, can

and will provide us with much more valuable information about the structures of employment in this critical

industry than our colleague supposes and, most certainly,

with more information than we have now.

With the sole exception of the rule governing appropriate units in acute health care facilities, the Board has

for 75 years developed the meaning of the statutory term

“an appropriate unit” through adjudication. 9 At various

times, adjudication has led, in this area as in others, to

changes in the rules. 10 The Supreme Court has approved

the Board’s use of adjudication in addressing the broad

range of issues arising under the Act, observing that “the

Board is not precluded from announcing new principles

in an adjudicative proceeding and . . . the choice between

adjudication and rulemaking in this context lies in the

first instance within the Board’s discretion.” 11 The Court

stressed that the Board’s judgment in choosing adjudication is “entitled to great weight.” 12 Our dissenting colleague nevertheless contends that the Board not

9

See, e.g., Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950)

(“There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most

appropriate unit; the Act requires only that the unit be ‘appropriate.’”);

Western Electric Co., 98 NLRB 1018 (1952) (employerwide unit presumptively appropriate); Kalamazoo Paper Box Corp., 136 NLRB 134

(1962) (severance of a group of employees from established unit not

appropriate unless those employees constitute a functionally distinct

group).

10

See, e.g., Oakwood Care Center, 343 NLRB 659 (2004) (bargaining units that combine employees solely employed by a user employer

and employees jointly employed by the user employer and a supplier

employer constitute multiemployer units, which may be appropriate

only with the consent of all employers), revg. M.B. Sturgis, Inc., 331

NLRB 1298 (2000), revg. Lee Hospital, 300 NLRB 947

(1990); Mallinckrodt Chemical Works, 162 NLRB 387 (1966) (criticizing prior standard for obtaining a craft severance election set forth

in American Potash & Chemical Corp., 107 NLRB 1418 (1954), which

itself substantially modified National Tube Co., 76 NLRB 1199

(1948)); Sav-On Drugs, Inc., 138 NLRB 1032 (1962) (reversing a long

line of cases holding that, absent unusual circumstances, an appropriate

multistore unit should include all employees within the employer’s

administrative division or geographic area).

11

NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).

12

Id.

3

only should not but cannot even consider a revision of

the rules governing appropriate units in the course of

adjudication. Contrary to the dissent, we think it is evident that adjudication, which is subject to judicial review, provides for no less “scrutiny and broad-based

review” than does rulemaking, especially where interested parties are given clear notice of the issues and invited to file briefs. And if, at any time, we are convinced

that rulemaking would be a fairer or otherwise more appropriate means to address the questions raised in this

case, we shall initiate that process.

In most respects, the Board’s standard for determining

whether a proposed unit is an appropriate unit is uniform

across industries. Industry-specific rules are the exception, not the norm. Yet our dissenting colleague suggests

it is not proper for the Board to even consider whether

any revision of the standard that might be appropriate in

this case or in the long-term care industry should also be

applied more generally. But the most basic principle of

adjudication, treating like cases alike, compels us to consider the scope of any holding we reach in this case and,

thus, it is entirely appropriate that we have asked interested parties to express their views on that question.

Moreover, in the long-term care industry and more

generally, the Board’s standards for determining if a proposed unit is an appropriate unit have long been criticized as a source of unnecessary litigation. In 1994, the

bipartisan Commission on the Future of Worker-Management Relations reported that parties engage in litigation over the scope of the unit for tactical purposes such

as to delay an election. 13 Yet the Board has often recognized the “Act’s policy of expeditiously resolving questions concerning representation.” Northeastern University, 261 NLRB 1001, 1002 (1982). If, after receiving

full and appropriate input from all interested parties, the

Board determines that the standard applicable in longterm care facilities can be clarified to prevent unnecessary litigation and delay, we believe it will have a duty to

at least consider whether any such revision should apply

more generally.

In sum, if, as our dissenting colleague suggests, the

Board’s current, careful, prudent inquiry into the facts

and solicitation of the views of all interested parties on

an important question of statutory construction will become a “lightning rod for Congressional inquiry and protests from the labor-management community,” the capacity of the Federal Government to carry out its statutory

13

Commission on the Future of Worker-Management Relations,

U.S., “The Dunlop Commission on the Future of Worker-Management

Relations—Final Report” 18–19 (1994).

4

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

responsibility to formulate sound labor-relations policy

has reached a sorry state indeed.

Dated, Washington, D.C. December 22, 2010

Wilma B. Liebman,

Chairman

Craig Becker,

Member

Mark Gaston Pearce,

Member

(SEAL)

NATIONAL LABOR RELATIONS BOARD

MEMBER HAYES, dissenting.

This was a simple case. The Regional Director failed

to apply extant law, as set forth in Park Manor Care

Center, 305 NLRB 872 (1991), when determining that

the petitioned-for unit of certified nursing assistants

(CNAs) was appropriate for bargaining. Having granted

review, the obvious decisional options for the Board

would be to: (1) remand for the Regional Director to apply Park Manor; (2) without remanding, apply Park

Manor and find that the CNA unit is not appropriate; or

(3) without remanding, apply Park Manor and agree with

the Regional Director’s finding that the CNA unit is appropriate. The majority, however, has made a different

choice. It seizes upon this case as an occasion for reviewing not only Park Manor and the standard for unit

determinations in nonacute health care facilities, but also

for reviewing “the procedures and standards for determining whether proposed units are appropriate in all industries.” This is no longer a simple case.

The parties involved did not request any such broad

inquiry. On the contrary, the party seeking review

sought to apply Park Manor, not to “clarify” or overrule

it. After the Board granted review, neither party filed a

brief. Instead, the notice and invitation to file briefs is a

stunning initiative by my colleagues to consider replacing decades of Board law applying the community-ofinterest standard with a test that will likely find that any

group of employees who perform the same job in the

same facility is an appropriate bargaining unit, without

regard for whether the interests of the group sought are

sufficiently distinct from those of other employees to

warrant the establishment of a separate unit. This initiative clearly represents broad scale rulemaking, without

the “inconvenience” of complying with the various statutory requirements for rulemaking under the Administrative Procedures Act, and without the scrutiny and broadbased review that such requirements are designed to in-

sure. The compelling need for such review and scrutiny

is patent here, inasmuch as the result contemplated could

reduce to insignificance the mandate under our Act that

extent of organization not be the controlling factor in unit

determinations. Regardless of ultimate outcome, the

mere process of inviting comment to the questions posed

here will most certainly become a lightning rod for Congressional inquiry and protests from the labormanagement community.

When enacting the 1974 amendments to the Act extending its coverage to include health care institutions,

Congress made abundantly clear that it intended the

Board to take a special approach towards unit determinations in recognition of the unique needs of that industry.

Thus, both Senate and House Reports directed that the

Board give due consideration to preventing proliferation

of units in the health care industry, which approach was

explained during debate as necessary to accommodate

the need to balance employee rights against the public

right to uninterrupted health care delivery. 1 For the period subsequent to the amendments, circuit courts generally found this explicit admonition controlling on the

Board’s health care unit determinations despite the fact

that it was not embodied in specific statutory language. 2

In fact, it was the “checkered and largely unfavorable

treatment” of the Board’s unit determinations by reviewing courts as not sufficiently adhering to Congress’ admonition that gave impetus to the Board’s decision to

engage in rulemaking to determine the most appropriate

units for the health care industry that would fulfill Congressional objectives. 3 The Board’s extensive rulemaking process, however, made evident that appropriate unit

decisions in the health care industry were not rooted

solely in the Congressional admonition against “undue

proliferation” but also the Board’s reasoned judgment

that “large-scale splintering of the workforce” was not in

accord with what is appropriate in the health care industry. 4

The rule in its final form did not extend to nursing

homes and other nonacute care facilities. 5 The Board

excepted nursing homes from coverage by the final rule

1

See substantial discussion of the legislative history of the health

care amendments to the Act in Masonic Hall v. NLRB, 699 F. 2d 626,

630–632 (2d Cir. 1983), referenced by the Board in its First Notice of

Proposed Rulemaking, 52 Fed.Reg. 25142, 25143 fn. 28 (1987), and

accompanying text.

2

See discussion and cases referenced in Masonic Hall, supra at 632–

633. But see Electrical Workers Local 474 (St. Francis Hospital) v.

NLRB, 814 F.2d 697 (D.C. Cir. 1987).

3

First Notice of Proposed Rulemaking at 25143.

4

Second Notice of Proposed Rulemaking, 53 Fed.Reg. 33900,

33905 (1988).

5

Id. at 33927–33929.

SPECIALTY HEALTH CARE & REHABILITATION CENTER OF MOBILE

based on evidence of rapid transition in the industry and

of significant differences among various types of nursing

homes. The Board concluded these considerations would

lead to difficulty in establishing uniform rules. But, at

the same time, the Board recognized that, generally, there

was less diversity in nursing homes among various

groupings and more functional integration. 6 These considerations would logically lead to the conclusion that

broader, less fragmented units might well be found appropriate in these facilities.

Subsequently, in Park Manor, the Board chose to apply the knowledge gained from the Board’s extensive

rulemaking process to nursing homes. In that case, the

Board remanded a unit issue to the Regional Director and

indicated that unit determinations for nursing homes

should be governed not only by traditional communityof-interest factors, but also background information

gathered during rulemaking and, finally, relevant prior

decisions as to the type of unit sought or type of institution involved. 7 In doing so, it noted particularly the observations from rulemaking concerning functional integration among employees in such facilities that likely

would result in finding smaller separate units less appropriate. 8

Applying the above principles to the facts here, the final health care rules applicable to acute care facilities

delineate nonprofessional employee units as a separate

appropriate unit. 9 Further, under Park Manor, the Board

has consistently found nonprofessional service and maintenance employees a separate appropriate unit in nursing

homes. 10 Finally, as to the petitioned-for CNA unit here,

CNAs have traditionally been considered within this

group, although, significantly, their inclusion in an overall unit has rarely been disputed. 11

In sum, the Board has applied Park Manor principles

to unit determinations in the nursing home industry for

6

Id.

Park Manor, supra at 875.

Id. at 874.

9

See 29 CFR § 103.30. Notably, the Congressional admonition

against undue proliferation of bargaining units cited with approval a

nursing home case, Four Seasons Nursing Center of Joliet, 208 NLRB

403 (1974), where the Board dismissed a petition for a separate twoperson maintenance unit because it “was not composed of a distinct and

homogenous group of employees with interests separate from those of

other employees.” Id. (emphasis added).

10

E.g., CGE Caresystems, 328 NLRB 748 (1999); Jersey Shore

Nursing & Rehabilitation Center, 325 NLRB 603 (1998); Lincoln Park

Nursing Home, 318 NLRB 1160 (1995); Hillhaven Convalescent Center, 318 NLRB 1017 (1995).

11

Jersey Shore, supra; Lincoln Park, supra; Hillhaven, supra. I note

that, in cases predating the 1974 amendments, CNAs were similarly

included in broad nonprofessional units in nursing homes without dispute. E.g., Leisure Hills Health Centers, 203 NLRB 326 (1973); Madeira Nursing Center, 203 NLRB 323 (1973).

7

8

5

approximately two decades and there is ample precedent

at our disposal for doing so here. Instead, the majority

takes this case as an opportunity to sweep away the wellestablished and carefully considered approach towards

unit determinations specifically focused on the special

needs of the heath care industry. My colleagues note that

the Board adopted a new approach in Park Manor and

that it is our obligation to continually evaluate whether

our decisions and rules are serving the Board’s statutory

purposes. Despite the dictum in Park Manor relied on

by my colleagues to launch this inquiry, there is little in

the intervening two decades to suggest that our policies

are in any way problematic, that the public wants us to

reconsider our precedent, or that intervening changes in

the nursing home industry warrant a new and different

approach.

My colleagues nevertheless today solicit “empirical

and practical” information. Of course, copious information is already available in-house in records maintained

by our Office of Representation Appeals. Predictably,

what we will receive will be mostly subjective or partisan justification for changing the law rather than any

useful information responding to real concerns. Regardless of what we receive, I see the invitation to file briefs

as a prelude to what will likely result in the substantial

increase of units in the nonacute health care industry, in

complete contradiction of the Congressional admonition

and of the logical expectation from the rulemaking experience and prior precedent that units would be fewer in

number and broader in scope than in the acute care setting.

The majority’s unjustified reconsideration of Park

Manor and of unit determinations in the nursing home

industry would be reason enough to dissent, and to contend that rulemaking should be the appropriate process

for reconsideration of a unit determination test based, at

least in part, on the results of the Board’s prior rulemaking process. However, a far greater concern is raised by

the invitation for parties and amici to address the standard for unit determinations in other industries. 12 I see

no reason to embark on this ill-considered path at all,

much less only a scant few months after the Board’s

most recent rejection of the view that a unit consisting of

all employees who do the same job at the same location

12

My colleagues pose the following questions: (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.” (emphasis added)

6

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

is appropriate, without considering whether the interests

of the group sought are sufficiently distinct from those of

other employees to warrant the establishment of a separate unit. 13 Further, while the Board has broad discretion

to make law through case-by-case adjudication rather

than through rulemaking, I believe my colleagues’ actions test, and likely will exceed, the limits of that discretion here. They are contemplating a broad revision of a

test for determination of appropriate units in all industries under our jurisdiction—a test that has stood for at

least 50 years. 14 In this respect, I find relevant the observations of the Ninth Circuit in Pfaff v. U.S. Dept. of

Housing & Urban Development, 88 F.3d 739, 748

(1996), that abuse of discretion may be present “where

the new standard, adopted by adjudication, departs radically from the agency’s previous interpretation of the

law, where the public has relied substantially and in good

faith on the previous interpretation, . . . and where the

new standard is very broad and general in scope and prospective in application.”

Finally, beyond the substantial concerns expressed

above, there is real reason to fear that my colleagues’

ultimate purpose is to use this case as a vehicle for abne13

Wheeling Island Gaming, Inc., 355 NLRB No. 127 (2010) (opinion of Chairman Liebman and Member Schaumber; Member Becker

dissenting).

14

See, e.g., Monsanto Co., 183 NLRB 415 (1970).

gating the statutory requirement in Section 9(c)(5) that

“[i]n determining whether a unit is appropriate . . . the

extent to which employees have organized shall not be

controlling.” In some circumstances, it might be prudent

for a Board Member to let the process play out before

dissenting. Not here. There is too much at stake, both

for the sake of industrial stability and for the Board’s

reputation as impartial overseer of the representation

election process. I find that there are no reasons at all to

reconsider our unit determination policies, by adjudication or rulemaking, either in the nonacute health care

industry or more generally in all industries. There are

sound reasons not to do so, perhaps most significantly

the risk that we may contravene our own Act, express

Congressional intent, the experience informing our

health care unit rules, and the Administrative Procedures

Act. I therefore dissent from the issuance of a notice and

invitation to file briefs.

Dated, Washington, D.C. December 22, 2010

Brian E. Hayes,

Member

NATIONAL LABOR RELATIONS BOARD