2012 WL 1387314 (C.A.6) For Dockets See 12-1174 , 12-1027

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

For Dockets See 12-1174 , 12-1027

United States Court of Appeals, Sixth Circuit. KINDRED NURSING CENTERS EAST, LLC, dba Kindred Transitional Care and Rehabilitation - Mobile, fka

Specialty Healthcare and Rehabilitation Center of Mobile, Petitioner Cross-Respondent, v.

NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International

Union, Intervenor. Nos. 12-1027, 12-1174.

April 16, 2012. On Appeal from the National Labor Relations Board

Brief of Petitioner Cross-Respondent Clifford H. Nelson, Jr., Constangy, Brooks & Smith, 230 Peachtree Street, N.W., Suite 2400, Atlanta, GA 30303, (404) 230-6714, [email protected]; Charles P. Roberts, III, Constangy, Brooks & Smith, 100 N. Cherry Street, Suite 300, Winston-Salem, NC 27101, (336) 721-6852, [email protected], Counsel for Petitioner Cross-Respondent.

Oral Argument Requested

*I DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST Pursuant to 6th Cir. R. 26.1, Petitioner Cross-Respondents Kindred Nursing Centers East, LLC make the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly-owned corporation? If the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: Kindred Nursing Centers East, LLC is a wholly owned subsidiary of Kindred Healthcare Operating, Inc., which is a wholly owned subsidiary of Kindred Healthcare, Inc. 2. Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? If the answer is YES, list the identity of such corporation and the nature of the financial interest: No.

*ii TABLE OF CONTENTS Corporate Disclosure Statement ... i Table of Authorities ... v

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Statement Regarding Oral Argument ... xi Statement of Jurisdiction ... 1 Statement of Issues ... 2 Statement of Case ... 2 I. The Representation Proceedings ... 2 II. Unfair Labor Practice Proceedings ... 6 Statement of Facts ... 7 I. Kindred Healthcare ... 7 II. The Mobile Facility ... 7 III. Managerial Structure ... 8 IV. Wages ... 9 V. Benefits ... 10 VI. Hours ... 11 VII. Educational/Training Prerequisites ... 11 VIII. Job Duties/Functional Integration/Interchange ... 12 IX. Miscellaneous Terms and Conditions ... 17 Summary of Argument ... 18 *iii Argument ... 23 Standard of Review ... 23 Discussion of Issues ... 24 I. The Act Constrains The Board's Exercise Of Discretion In Determining The Appropriate Unit For Collective Bargaining ... 24 II. The Board Abused Its Discretion By Arbitrarily And Irrationally Changing Its Long-Standing View That A Unit Limited To CNAs Is Not An Appropriate Unit For Bargaining ... 28 A. For More Than Forty Years The Board Never Found A Unit Limited To CNAs To Be An Appropriate Bargaining

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Unit ... 28 B. The Board Offers No Reasoned Explanation For Changing Its Long- Held View That A Unit Limited To CNAs Is Inappropriate And That Health Care Facilities Are Unique ... 34 C. The Board's Decision Does Not Promote Efficient Bargaining And Gives No Weight To The Legitimate Interests Of Employees Excluded From The Unit Or Employers ... 38 III. The Board Abused Its Discretion And Violated The Act By “Clarifying” The Law To Require That Employees Not Sought By The Union Share An “Overwhelming Community Of Interests” With The Petitioned-For Employees ... 44 A. The Board Historically Has Applied The “Overwhelming” Community Of Interests Standard Only In Accretion Cases. In Initial Unit Determinations, It Historically Has Included All Employees Who Share A “Close” Community of Interests With The Petitioned-For Employees. The Two Standards Are Dramatically Different And Produce Op-posite Results ... 45 B. The Board's Decision Runs Afoul Of Section 9(c)(5) ... 49 *iv IV. The Board's New Analysis Effectively Delegates Away The Board's Obligation To Determine The Appro-priate Unit In Each Case ... 55 V. The Board's Decision Making Process Constitutes An Abuse Of Discretion ... 56 VI. The CNAs Do Not Have Distinctively Different Interests From Other Nonprofessional Employees That Would Warrant Separate Representation ... 57 Conclusion ... 61 Certificate of Compliance ... 62 Certificate of Service ... 63 Statutory Addendum

*v TABLE OF AUTHORITIES Cases Allegheny General Hospital, 239 NLRB 872 (1978) ... 31 Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998) ... 24 American Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991) ... passim Arcadian Shores, Inc. v. NLRB, 580 F.2d 118 (4th Cir. 1978) ... 51 Atchison, T. & S.F.Ry. Co. v. Witchita Bd. Of Trade, 412 U.S. 800 (1973) ... 28

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Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008) ... 47, 48 Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012 (7th Cir. 1998) ... 23 Botany Worsted Mills, 27 NLRB 687 (1940) ... passim Brunswick Corp., 257 NLRB 868 (1981) ... 46 Bry-Fern Care Center v. NLRB, 21 F.3d 706 (6th Cir. 1994) ... 24, 59 Butte Medical Properties, 168 NLRB 266 (1967) ... 29 Catholic Healthcare West, 344 NLRB 790 (2005) ... 36 *vi Central Dispensary & Emergency Hospital, 44 NLRB 533 (1942) ... 29 CGE Caresystems, Inc., 328 NLRB 748 (1999) ... 32 Consumers Energy Co. v. F.E.R.C., 226 F.3d 777 (6th Cir. 2000) ... 24, 44 Drexel Home, Inc., 182 NLRB 1045 (1970) ... 29 DTG Operations, Inc., 357 NLRB 175 (2011) ... 53, 54 Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975) ... 40, 46 Extendicare of West Virginia, 203 NLRB No. 170 (1973) ... 30 Extendicare of West Virginia, Inc., 203 NLRB 1232 (1973) ... 29-30 First Nat. Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472 (7th Cir. 1999) ... 21, 23, 44, 45 Flatbush General Hospital, 126 NLRB 144 (1960) ... 29 Four Seasons Nursing Center, 208 NLRB No. 50 (1974) ... 30 Glen Manor Home for the Jewish Aged v. NLRB, 474 F.2d 1145 (6th Cir. 1973) ... 29 Harrah's Illinois Corp., 319 NLRB 749 (1995) ... 46 Hebrew Home & Hospital, Inc., 311 NLRB 1400 (1993) ... 33 *vii Hillhaven Convalescent Center, 318 NLRB 1017 (1995) ... 33 Hospital Hato Tejas, Inc., 111 NLRB 155 (1955) ... 29

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Jackson Manor Nursing Home, Inc., 194 NLRB 892 (1972) ... 30 Kalamazoo Paper Box Corp., 136 NLRB 134 (1962) ... 25, 41 Local 1325, Retail Clerks International Ass'n v. NLRB, 414 F.2d 1194 (D.C. Cir. 1969) ... 50 Lincoln Park Nursing & Convalescent Home, Inc., 318 NLRB 1160 (1995) ... 32-33 Lundy Packing Co., 314 NLRB 1042 (1994) ... 47, 48 Mallinckrodt Chemical Works, 162 NLRB 387 (1966) ... 27 Manor Healthcare Corp., 285 NLRB 224 (1987) ... 35-36 Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975) ... 35 Michigan Hospital Service Corp. v. NLRB, 472 F.2d 293 (6th Cir. 1972) ... 26 Monsanto Co., 183 NLRB 415 (1970) ... 46 Motor Vehicle Mfrs. Ass'n. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ... 28 Newton-Wellesley Hospital, 250 NLRB 409 (1980) ... 45 *viii NLRB v. Action Automotive, Inc., 469 U.S. 490 (1985) ... 26 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) ... 39 NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ... 57 NLRB v. Catherine McAuley Health Center, 885 F.2d 341 (6th Cir. 1989) ... passim NLRB v. Indianapolis Mack Sales & Service, 802 F.2d 280 (7th Cir. 1986) ... 25, 40 NLRB v. Lake County Ass'n for the Retarded, Inc., 128 F.3d 1181 (7th Cir. 1997) ... 50-51 NLRB v. Lundy Packing Co., 68 F.3d 1577 (4th Cir. 1995) ... 51 NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438 (1965) ... 49, 50 NLRB v. Pinkerton's, Inc., 428 F.2d 479 (6th Cir. 1970) ... passim NLRB v. Sweetwater Hosp. Ass'n., 604 F.2d 454 (6th Cir. 1979) ... 29, 30 NLRB v. Western & Southern Life Ins. Co., 391 F.2d 119 (3d Cir. 1968) ... 50 NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) ... 56

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Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163 (2011) ... 53 Odwalla, Inc., 357 NLRB No. 132 (2011) ... 55 *ix Ore-Ida Foods, Inc., 313 NLRB 1016 (1994) ... 43 Park Manor Care Center, Inc., 305 NLRB 872 (1991) ... passim Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991) ... 23 Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941) ... 18, 24, 25 Retail Clerks Union Local 324, 144 NLRB 1247 (1963) ... 27 Safeway Stores, Inc., 256 NLRB 918 (1981) ... 21, 46, 47 Trustees of Masonic Hall & Asylum Fund v. NLRB, 699 F.2d 626 (2d Cir. 1983) ... 31, 36 Truck Drivers Local Union 807 v. NLRB, 755 F.2d 5 (2d Cir. 1985) ... 27 University Nursing Home, Inc., 168 NLRB 263 (1967) ... 29 Virtua Health, Inc., 344 NLRB 604 (2005) ... 33 Westward-Ho Hotel Co. v. NLRB, 437 F.2d 1110 (9th Cir. 1971) ... 28, 51, 52 Wheeling Island Gaming, Inc., 355 NLRB No. 127 (2010) ... 46 Woodland Park Hospital, 205 NLRB No. 144 (1973) ... 30 *x Statutes National Labor Relations Act, as amended § 3(b) ... 33 § 7 ... 26 § 8(a)(5) and (1) ... 2 § 9 ... 22, 49, 55 § 9(a) ... 24 § 9(b) ... passim

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§ 9(b)(1) ... 42 § 9(b)(2) ... 42 § 9(b)(3) ... 27 § 9(c)(5) ... passim 29 U.S.C. § 152(2) (1970 ed.) ... 28 29 U.S.C. § 153(b) ... 33 29 U.S.C. § 156 ... 56 29 U.S.C. § 158(a)(5) ... 2 29 U.S.C. § 159 ... 3 29 U.S.C. § 160(e) ... 2 29 U.S.C. § 160(f) ... 2 29 U.S.C. § 164 ... 29 *xi Regulations 29 C.F.R. § 102.67 ... 33 29 C.F.R. § 103.30 ... 18, 31, 37 53 FR 33900 (1988) ... 38 Other Authorities H.R. Rep. No. 245, 80th Cong., 1st Sess., 37 (1947) ... 28 H.R.Rep. No. 1051, 93d Cong., 2d Sess. 7 (1974), reprinted in Legis. Hist. at 269 ... 30 S.Rep. No. 766, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974 U.S.Code Cong. & Ad. News 3946 ... 30

*XII STATEMENT REGARDING ORAL ARGUMENT Petitioner respectfully requests that this Court grant oral argument. As set out in this brief the Board's Specialty Healthcare decision is perhaps the most important decision ever issued by the Board regarding the administration of section 9 of the Act. The Board has dramatically altered the manner in which it carries out its statutory obligation to select the appropriate unit for collective bargaining in each case, effectively delegating the unit determination to the petitioning union. The Board has departed from its view of more than forty years that a unit limited to certified nursing assistants is not appropriate for bargaining and it has done so without reasoned explanation. The impact of the Board's

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decision, however, is not limited to the appropriateness of a CNA-only unit, nor is it restricted to health care facilities; rather, Specialty Healthcare affects every unit determination made by the Board regarding any employer that is cov-ered by the Act. Petitioner suggests that oral argument will assist this Court in understanding the record and the issues and in rendering its ultimate decision. STATEMENT OF JURISDICTION This case arises out of a representation petition filed with the National Labor Relations Board (“Board”) by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union (“Union”) seeking to be designated as the exclusive collective bargaining representative for a unit of certified nursing assistants (“CNAs”) employed by Kindred Nursing Centers East, LLC, d/b/a Kindred Transitional Care and Reha-bilitation -- Mobile[FN1] (“KTCR”) at its facility located in Mobile, Alabama. (App. 75). On August 26, 2011, the Board issued a Decision on Review and Order in Specialty Healthcare, which is reported at 357 NLRB No. 83, finding the requested CNA unit appropriate. (App. 19). The Board's Regional Director opened the ballots, and as a majority of the valid votes had been cast for the Union, issued a Certification of Representative on September 26, 2011. (App. 198).

FN1. The facility was formerly known as Specialty Healthcare and Rehabilitation Center of Mobile. The Board's decision has achieved notoriety as the Specialty Healthcare decision and will be referred to herein in that manner.

On November 4, 2011, following KTCR's refusal to recognize it, the Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. (App. 200). The Regional Director issued a Complaint on November 16, 2011. (App. 201). KTCR filed a timely Answer admitting the Union's certification, but denying the validity of the certifi-cation. (App. 206). Following summary judgment proceedings, the Board issued its Decision and Order on December 30, 2011, finding that KTCR had violated sections 8(a)(5) and (1) of the National Labor Relations Act, as amended, (“Act”), 29 U.S.C. §§ 158(a)(5) and (1), and ordering KTCR to recognize and bargain with the Union. (App. 15). The Board's Decision and Order is a final order that disposes of all claims. KTCR, as an aggrieved party that operates facilities in Kentucky and Ohio, filed its petition for review in this Court on January 11, 2012. (App. 47). The Act does not specify any time period for filing a petition for review. This Court has jurisdiction pursuant to 29 U.S.C. § 160(f). The Board subsequently filed a cross-petition seeking enforcement of its order pursuant to 29 U.S.C. § 160(e). STATEMENT OF ISSUES 1. Whether the Board's Specialty Healthcare decision is inconsistent with the Act or otherwise an abuse of the Board's discretion. 2. Whether the Board's determination that KTCR's CNAs constitute an appropriate unit for bargaining is unsupported by substantial evidence, inconsistent with the Act, or otherwise an abuse of the Board's discretion. STATEMENT OF CASE I. The Representation Proceedings On December 18, 2008, the Union filed a representation petition seeking to represent all CNAs employed at KTCR's Mobile facility, excluding all other employees. (App. 75). Following an evidentiary hearing, the Regional Director issued a Decision and Direction of Election, finding the CNA unit appropriate for bargaining. (App. 76). KTCR filed a timely request for review with the Board. (App. 94). On February 19, 2009, the then two-member Board granted the request for review. (App. 128). The election, however, was conducted as scheduled on February 20, 2009. (Notice of

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Election, App. 129). On August 27, 2010, the Board, having reacquired a quorum, reaffirmed the prior grant of review, (App. 132), and on December 22, 2010, the Board, over the dissent of Member Hayes, issued a Notice and Invitation to File Briefs to the parties and the public. (App. 133). The notice posed some eight questions for the parties and interested amici to address. Thereafter, the parties and a plethora of amici, including several United States Senators, filed briefs.[FN2]

FN2. These briefs are included in Volume III of the official record. On August 26, 2011, the Board, over an impassioned dissent by Member Hayes, issued its Decision on Review and Order in Specialty Healthcare. (App. 19). The Board majority dramatically altered the Board's historical interpretation and application of section 9 of the Act, 29 U.S.C. § 159, in certain significant respects. First, the Board overruled its prior decision in Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991), which had established a modified analysis in nursing home unit determinations that combined traditional community of interest factors with factors deemed relevant during the Board's rulemaking proceedings for units in acute care hospitals. (Specialty Healthcare, pp. 5-9; App. 23-27). The Board concluded, contrary to long-standing precedent, that the Congressional admonition against proliferation of units in the health care industry and the information obtained re-garding nursing homes during the rulemaking process were essentially meaningless, there was no statutory basis for using different unit determination criteria in the health care industry, and henceforth, the Board would apply its tra-ditional community of interests test in making unit determinations in health care facilities not covered by the Board's rule. (Id.). Second, the Board divided what essentially had been a one-step inquiry into two steps. Whereas the Board's historical practice was to evaluate the petitioned-for unit not in isolation, but in conjunction with an assessment of the com-munity of interests shared by other employees not sought by the union, the majority in this case clearly separated the inquiry into two distinct steps, with the first step being a vacuum-sealed determination of whether the employees petitioned for share a community of interests with each other. Upon determining that these employees do share a community of interests with each other, the Board effectively now deems the unit to be presumptively appropriate. (Specialty Healthcare, pp. 9-11; App. 27-29). Only then does it examine the community of interests shared by other employees. Third, the Board--while denying it was changing the law--purported to “clarify” varying terminology utilized in prior cases 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, functions, 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 demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit. (Specialty Healthcare, p. 13; App. 31). Fourth, despite an unblemished history of never finding a CNA-only unit to be appropriate, the Board concluded that KTCR's CNAs were identifiable as a group and shared a distinct community of interests that was not overwhelmed by their community of interests with other nonprofessional employees. Accordingly, the majority held that the CNA unit requested by the Union was an appropriate unit. (Specialty Healthcare, pp. 13-15, App. 31-33). As a majority of the CNAs (39 to 17) voted in favor of union representation, (Tally of Ballots; App. 197), the Regional Director issued a Certification of Representative on September 26, 2011. (App. 198).

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II. Unfair Labor Practice Proceedings Because the Board's representation decisions are not “final orders,” such decisions can be challenged only by testing the certification in a refusal to bargain proceeding. Accordingly, KTCR refused to recognize the Union, the Union filed an unfair labor practice charge on November 4, 2011, (App. 200), and the Regional Director issued a Complaint on November 16, 2011. (App. 201). KTCR filed a timely Answer admitting the Union's certification, but denying the validity of the certification. (App. 206). On December 7, 2011, the Board's Acting General Counsel filed a Motion to Transfer Proceedings to the National Labor Relations Board and for Summary Judgment. (App. 214). On December 30, 2011, the Board issued its Decision and Order finding that KTCR had violated sections 8(a)(5) and (1) of the Act. (App. 15). KTCR filed its petition for review in this Court on January 11, 2012. (App. 47). The Board subsequently filed a cross-petition seeking enforcement of its order. STATEMENT OF FACTS I. Kindred Healthcare Kindred Healthcare, headquartered in Louisville, Kentucky, is the largest post-acute health care company in the United States. (Transcript, 17-18; App. 336-337). Through its nursing home division, it operates more than 200 nursing homes, including the Mobile, Alabama facility at issue in this proceeding. Twenty-seven of these nursing homes have employees who are represented by unions and covered by collective bargaining agreements. In none of these facilities (other than the Mobile facility) is the bargaining unit limited to CNAs. (Transcript, 21-22; App. 340-341). II. The Mobile Facility The Mobile facility is a four-floor facility licensed to operate 170 beds, of which 143 were occupied at the time of the hearing in early 2009. (Transcript, 89; App. 408). Located on the first floor are a dining and recreation room, the kitchen/dietary department, therapy rooms, an employee break room, and various offices. The second, third and fourth floors primarily include patient/resident rooms, but each floor also contains a nursing station, a combined din-ing/activity area (Sun Porch), and small storage/supply rooms. A Social Services office is located on the third floor, and the fourth floor contains a beauty shop used by residents. (Employer Exhibit 2, App. 275-278; Transcript, 95-101; App. 414-420). The Board found there were fifty-three CNAs in the unit and approximately thirty-three excluded nonprofessional employees. (Specialty Healthcare, pp. 2, 3; App. 20, 21).[FN3] The employees excluded by the Board were two activ-ities assistants, one maintenance assistant, one social services assistant, one central supply clerk, one medical records clerk, one staffing clerk, one receptionist, one data entry clerk, one business office clerk, and an unspecified number of dietary aides and cooks. (Transcript, 9-10, 57, 63-66, 76, 93-94, 134-144, 149, 163; App. 328-329, 376, 382-385, 395, 412-413, 453-463, 468, 482).

FN3. The Union's petition indicates that the unit sought included fifty-one CNAs, (App. 75), but the Union stated at the hearing there were fifty-three CNAs (Transcript, p. 11; App. 330), and the actual tally of ballots reflects sixty-eight eligible employees on the Excelsior List, of whom fifty-six actually voted. (App. 197). This discrepancy does not appear material.

III. Managerial Structure

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The Administrator is the highest ranking official at the facility. Reporting directly to him are a number of departmental managers/supervisors including, among others, the Nursing Director, Business Office Manager, Social Worker, Maintenance Supervisor, Recreational Therapist, and Dietary Supervisor. The Activities Director reports to the Recreational Therapist. (Employer Exhibit 3, App. 279). The CNAs are part of the nursing department and report up through the LPNs and Registered Nurses (RNs) to the Nursing Director. Also reporting directly to the Nursing Director are the medical records clerk, staffing clerk, central supply clerk (who also reports to the Business Office Manager), and data entry clerk (Transcript, 161-162; App. 480-481). The dietary aides and cooks report directly to the dietary supervisor, the activities assistants report to the activities director, the maintenance assistant reports to the maintenance supervisor, the social services assistant reports to the social worker, and the receptionist and business office clerical report to the business office manager. (Employer Ex-hibit 3, App. 279; Transcript, 163-165; App. 482-484). IV. Wages The CNAs are paid by the hour, as are all of the other nonprofessional employees. The starting hourly rate for CNAs is $8.50. The dietary aides start at $7.00, the cooks at $9.00, the receptionist at $9.00 to $10.00, the central supply clerk at $10.00, the medical records clerk at $10.00, the staffing clerk at $10.00, and the data entry clerk at $15.00 to $16.00. The CNAs, dietary aides, and cooks all receive an additional $0.10 per hour per year of prior experience up to 15 years of experience. (Employer Exhibit 6; App. 280; Transcript, 112-114; App. 432-434). Subsequent increases are based on anniversary reviews, which are prepared by the supervisor, reviewed by higher management, and ultimately approved by the administrator. The increases are constrained by the budget that has been prepared. For example, if a 3% increase has been budgeted, individual employees may receive more or less, but all increases given will average 3%. (Tran-script, 114-115; App. 433-434). All nonprofessional employees are paid overtime at time and one-half for all hours worked in excess of forty in a week. (Transcript, 177; App. 436). “Only hours actually worked count for the purpose of overtime calculation and do not include any non-working hours, such as holiday, PTO and sick time, even though those hours are paid.” (Employer Exhibit 1, p. 26; App. 243). All nonprofessional employees are paid bi-weekly on Fridays. (Transcript, 187; App. 506). V. Benefits All nonprofessional employees receive an identical benefit package. While the actual benefits may vary in some respects by seniority (vacation benefits) or option selected (family versus individual health coverage), all nonprofes-sional employees are eligible for the following benefits: health insurance/medical plan, 401(k) retirement plan, profit sharing, employee assistance program, group life insurance benefits, group disability benefits, supplemental life and disability benefits, paid time off benefits, leaves of absence, wellness program, employee discount programs, “pay in lieu of benefits” option, tuition reimbursement, performance based awards, holiday turkey, medicare settlement fund distributions, zero deficiency bonus, employee recognition program, and angel care program. (Employer Exhibit 1, pp. 30-42; App. 247-259). VI. Hours The CNAs are scheduled on a three-shift work day, with the first shift running from 6:00 a.m. to 2:00 p.m., the second shift from 2:00 p.m. to 10:00 p.m., and the third shift from 10:00 p.m. to 6:00 a.m. (Transcript, 47-48, 157; App. 366-367, 476). The activities assistants are scheduled on a two-shift work day, with the first shift running from 8:00

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a.m. to 4:30 p.m. and the second shift overlapping on a staggered basis depending upon scheduled activities, but typically ending between 6:00 p.m. and 8:00 p.m. (Transcript, 120-121; App. 439-440). The dietary aides are sched-uled on two overlapping shifts to cover the three meals, with the morning shift beginning around 5:00 a.m. and the evening shift ending at 7:30 p.m. to 8:00 p.m. (Transcript, 123-124, 168; App. 442-443, 487). The cooks work similar hours to the dietary aides. (Transcript, 130-131; App. 449-450). The staffing clerk, central supply clerk, and data entry clerk work Monday through Friday from 8:00 a.m. to 4:30 p.m. (Transcript, 134, 142, 145; App. 453, 461, 464). VII. Educational/Training Prerequisites Although the CNA job description indicates that a high school diploma or equivalent is preferred, (Employer Exhibit 8e; App. 297), the sole CNA who testified before the Board testified that she only reached the eleventh grade. (Transcript, 69-70; 388-389). No license is required, but a state certification is a legal prerequisite. For dietary aides, a tenth grade education is desired. (Employer Exhibit 8b; App. 287). For cooks, a tenth grade education is the minimum, but a high school degree or equivalent is preferred. (Employer Exhibit 8c; App. 290). For the maintenance assistant, staffing clerk, medical records clerk, central supply clerk, and data entry clerk, a high school degree or equivalent is preferred. (Employer Exhibits 8d, 9a, 9b, 9c, 93; App. 294, 300, 303, 306, 309). For the activity assistants, the edu-cational requirement can be satisfied by either a bachelor's or associate degree in a pertinent field or one of several certifications. (Employer Exhibit 8a; App. 284). VIII. Job Duties/Functional Integration/Interchange The various job classifications in issue each have their own specific job duties, but all of these classifications are highly integrated functionally. The basic mission of the facility is to provide quality care to each resident. These needs are not just medical or clinical, but also include nutritional, psychosocial, and activity needs. Meeting these needs “entails a collaborative effort” of all departments within the facility. (Transcript, 125; App. 444). Upon the admittance of a new resident, the facility immediately performs an assessment of the resident's dietary, social, and clinical needs with the goal of developing a formal care plan. (Transcript, 125-127; App. 444-446). The care plan is followed by all employees in carrying out their duties. However, it is not a static document, and as resident needs change, so too must the care plan. The different disciplines meet at least quarterly, and more frequently if needed, to update the care plan. CNAs often participate in these meetings. (Transcript, 127-128; App. 446-447). All classifications in issue work jointly and in an integrated fashion. The CNAs are responsible for providing the daily personal care required by the residents. This includes answering call lights, assisting residents with grooming and hygiene needs, obtaining food trays and assisting in feeding residents, turning and repositioning residents, ambulating residents, assisting with range-of-motion exercises, taking vital signs, attending interdisciplinary meetings, docu-menting all care on flow sheets, and performing other assigned tasks. (Employer Exhibit 8e; 297). The activity assistants work throughout the facility and are in regular contact on a daily basis with CNAs. There are designated activity rooms on each floor of the facility. CNAs sometimes take residents to the activity rooms, or the activity assistants will come to the residents' rooms to get them. For residents who are confined to their beds, the activity assistants carry out activities in the residents' rooms. Activities include music, art, pets, church services, and various clubs and groups who come to the facility to interact with the residents. The activity assistants plan and lead these activities, decorate the facility for special events and parties, “foster[] a sense of community within the center environment,” and “provide both comfort and stimulation to the resident population.” (Employer Exhibit 8a, App. 284; Transcript, 54-56, 116-121; App. 373-375, 435-440). The primary functions of the cooks and dietary aides include preparing and/or pre-portioning food “for regular and therapeutic diets according to the planned menu for meals and snacks, as well as employees and special events, as instructed,” ensuring “that meals and snacks are delivered to designated areas according to established time sched-ules,” using proper food handling and food safety techniques, washing dishes, and other tasks associated with the

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preparation of food. (Employer Exhibits 8b, 8c; App. 287-291). The CNAs come down to the dietary area on a daily basis to pick up food trays, which they then deliver to the residents. In addition, they frequently go to the kitchen to retrieve sandwiches and other items requested by residents, and they go to the dining room to assist residents with eating. (Transcript, 50-53, 71-72, 122-123, 156; App. 369-372, 390-391, 475). The staffing clerk maintains an office on the first floor, but also spends as much as three to four hours a day working “on the floor” with CNAs and other employees, coordinating work schedules, as well as working with the nursing department staff to coordinate overtime needs and job postings for open positions. The staffing clerk also works with all departments in an effort to locate replacement personnel to cover shifts of employees who have called-off work. (Transcript, 58, 75, 78, 135-136; App. 377, 394, 397, 454-455). The medical records clerk maintains an office, but is frequently “out on the floors” retrieving medical records, setting up patient charts, retrieving patient records needed in the performance of CNAs' job, and working with Activities of Daily Living (“ADL”) flow charts. The ADL flow charts detail everything that occurs with a resident on a daily basis such as bathing, dressing, walking, eating, and other daily living activities, and the CNAs are primarily responsible for recording the data reflected on the ADL charts and other records. The charts are maintained at the nursing stations, and the medical records clerk is responsible for any typing or computer data-entry into the ADL chart. (Transcript, 137-138; App. 456-457). The central supply clerk is generally responsible for a medical supplies storage room on the first floor of the facility; however, this employee is also responsible for stocking and maintaining supply closets located at the nursing stations on each floor of the facility. (Transcript, 139-140; App. 458-459). In performing these duties, the central supply clerk comes into regular contact with all staff throughout the facility on a daily basis. Furthermore, the central supply clerk often works directly with the CNAs to ascertain special needs or supply requirements of the residents. (Transcript, 57, 140; App. 376, 459). The data entry clerk's principle job function is data entry with respect to the purchasing and distribution of medical supplies, and the billing/charge function in connection with the use of those supplies; however, performing such tasks requires close collaboration with other staff, including the CNAs. When using/removing medical supplies from the supply closet, a CNA must remove a “charge sticker” from the item and then transfer the charge sticker to a “charge sheet.” The charge sheet becomes the record used by the data entry clerk as a method of tracking inventory and an-cillary charges in the billing office. When a discrepancy occurs, or if a question arises regarding charge-out stickers not matching up with inventory information, the data entry clerk must interact with other staff, including CNAs, in an effort to explain or balance the apparent discrepancy. (Transcript, 143- 144; 462-463). The receptionist also has frequent interaction with the CNAs. Her desk is located in the lobby of the building. How-ever, CNAs are permitted to receive important phone calls while working, and it is the receptionist who receives these calls and takes messages for the CNAs. (Transcript, 76; App. 395). All nonprofessional employees attend and participate together in the Employer's meetings and training functions. This includes “in-service” programs on topics such as misappropriating resident funds and crime prevention. The Employer also conducts daily “stand up” meetings where representatives from each department receive a general overview of everything that happened in the facility during the course of the previous day and/or shift. (Transcript, 150-151; App. 469-470; Employer Exhibits 7(a), 7(b); App. 281-283). Although transfers or promotions between nonprofessional positions are infrequent, they have occurred, including a CNA who was promoted into a Unit (Data Entry) Clerk position. (Employer Exhibit 10; App. 312-318). IX. Miscellaneous Terms And Conditions

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All employees utilize the same parking lots, “punch-in” at the same time clock, utilize the same smoking area, receive employer communications on the same bulletin boards, utilize identical name badges, attend the Company Christmas party and other social functions, and go through the same “new employee orientation.” (Tr. 98, 102, 108-110; App. 417, 421, 427-429). Furthermore, all employees, regardless of department or position, are governed by identical corporate policies and rules; some examples of such policies and rules include: Standards of conduct, Performance Improvement, Attendance and Punctuality, Corrective Action, Confidentiality, Outside Employment, Company Communications, Personal Appearance and Dress, Inspections, Telephone Usage, Cell Phones and Pagers, Smoking, Solicitation and Distribution, and Company Vehicles. (Employer Exhibit 1, pp. 43-57; App. 260-274). SUMMARY OF ARGUMENT Specialty Healthcare arguably represents the most significant decision ever rendered by the Board regarding the administration of section 9 of the Act. Selection of the appropriate unit for collective bargaining is the Board's primary function in representation proceedings, and it is the foundation upon which the Board effectuates the Act's “policy of efficient collective bargaining.” Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 165 (1941). The Board's decision to permit unions to organize by job classification, except where ostensibly excluded classifications share an “over-whelming” community of interests with the included classification(s), represents a sea change in the manner in which the Board historically has interpreted and administered section 9(b), not merely in the health care industry, but in all cases falling within the Board's jurisdiction. Until Specialty Healthcare, the Board historically viewed health care unit determinations to be sui generis. For the most part, the Board applied its long-established “community of interests” standard to health care unit determinations, but in doing so, always considered the Congressional admonition to avoid undue unit proliferation in health care facilities. In 1990, the Board adopted a rule delineating eight units that would be deemed appropriate in acute care hospitals. 29 C.F.R. § 103.30. One year later, in Park Manor, supra, the Board held that in nursing homes and other health care facilities not covered by the rule, it would consider the standard “community of interests” factors, as well as information gathered during rulemaking proceedings and prior Board decisions involving either the specific unit or type of health care facility in dispute. Over the next twenty years, typically appropriate units developed that were largely the same as those found appropriate prior to Park Manor. With respect to nonprofessional employees, the Board allowed unions to organize in either a comprehensive service and maintenance unit, or to break out separate units of technical employees, skilled maintenance employees, and/or business office clericals. In no case, however, did the Board ever approve, over objection, a unit of CNAs or permit a union to carve individual job classifications out of a nonprofessional unit. Thus the Board's judgment for more than forty years was that in health care facilities, the policies of the Act would be best served by limiting to four a union's choice of units including some or all nonprofessional employees. The Board has failed to provide a reasoned analysis for its new view that CNAs, and perhaps all other individual job classifica-tions, constitute an appropriate unit for bargaining. The Board falls back largely on two rubrics: (1) it need not select the most appropriate unit, only an appropriate unit; (2) a union need not organize in the most comprehensive appropriate unit. True enough, but neither rubric rationally explains why the Board's forty-year view that a nursing home's CNAs do not represent an appropriate unit for bar-gaining was in error. What statutory policies are effectuated by allowing CNAs to organize and bargain as a discrete group? Other than encouraging unions to engage in piecemeal organization and bargaining, the Board offers none. If the impact of the Board's decision were merely to carve out another exception to a broad service and maintenance unit, the decision would be troublesome, but all parties could adapt their bargaining patterns. The Board's decision, however, goes far beyond creating a limited exception to established nursing home units. Instead, it establishes a whole new analysis that applies across industry lines and effectively makes every discrete job classification a viable bargaining unit. This analysis gives short shrift to the basic principle that “[a]n employer is entitled to a reasonably adequate protection from the results of piecemeal unionization.” NLRB v. Pinkerton's, Inc., 428 F.2d 479, 485 (6th Cir.

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1970). And the Board thumbs its nose at the Congressional admonition against unit proliferation in health care facil-ities. “Traditionally, in making unit determinations, the Board has adhered to a ‘community of interests' test: two groups must share a community of interests in wages, hours, and other conditions of employment sufficient to justify their mutual inclusion in a single bargaining unit,” NLRB v. Catherine McAuley Health Center, 885 F.2d 341, 344-345 (6th Cir. 1989), but prior to this case, the Board never viewed the unit proposed by the union in a vacuum. Rather, it ex-amined the community of interests shared by the employees in the proposed unit with other employees whom the union sought to exclude to see if they were “sufficiently distinct” to warrant separate units. When the employees in the proposed unit shared a “close,” even if not “overwhelming,” community of interests with other employees, the Board required inclusion of these other employees in the unit. The “overwhelming” community of interests standard originated in accretion cases where a labor organization seeks to “accrete” unrepresented employees to a unit of represented employees without any opportunity on the part of the accreted employees to vote on union representation. Because the right to self determination is fundamental, the Board has accreted employees only when they have little or no separate group identity and share an overwhelming com-munity of interests with the preexisting unit. Safeway Stores, Inc., 256 NLRB 918, 918 (1981). Here, however, the Board has mandated that the “overwhelming” community of interests test be applied to initial unit determinations, obliterating any distinction with accretions, but in doing so, has insisted it was merely “clarifying” the law. The Board may not change the law under the “guise of clarifications,” First Nat. Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 479 (7th Cir. 1999); yet, that is precisely what it has done, and given its unconvincing denial that a change has occurred, ipso facto it has not offered a reasoned explanation for doing so. The Board's new method of “selecting” the appropriate unit also constitutes an abuse of the Board's discretion because it patently fails to serve the Act's policy of efficient collective bargaining. Piecemeal organizing will become rampant, disunity will be created, and efficient and stable collective bargaining will suffer, all in the name of allowing unions almost complete discretion in determining the appropriate unit. The Board has effectively abdicated its responsibility under section 9(b) to determine the appropriate unit, and by placing that decision almost exclusively in the hands of the petitioning union, it has violated section 9(c)(5) of the Act. Indeed, the only meaningful factors that distinguish KTCR's CNAs from the other nonprofessional employees are that they occupy their own job classification, have their own immediate supervisors, and must obtain a certification from the state of Alabama. In the Board's view, the fact that all nonprofessional employees are functionally integrated, have the same overriding mission, work in the same facility, see and interact with each other on a daily basis, and share common wages, benefits, and employment/labor relations policies, which are all centrally determined, are insufficient to overwhelm the few distinctions inherent in any job classification. The Board has accomplished this destruction, not through the deliberative rulemaking process, but through a sua sponte decision to rewrite the entire landscape of section 9 in a case that involved what should have been a simple application of existing precedent. While the Board's discretion is wide, Specialty Healthcare shatters the outer limits of that discretion.

ARGUMENT

Standard Of Review In determining the appropriate unit for collective bargaining, the Board has “[w]ide, though not unbridled, discretion,” Catherine McAuley Health Center, 885 F.2d at 344, and its discretion is constrained both by the Act and the Board's prior decisions. A court reviews the Board's unit determinations for abuse of discretion and compliance with the statute. Pinkerton's, supra, 428 F.2d at 481. Where the Board's unit determination “oversteps the law,” Catherine

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McAuley at 344, or where its interpretation of the Act “strikes [the court] as contrary to the policies and purposes underlying the Act,” it is unreasonable and an abuse of discretion. Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012, 1020 n. 4 (7th Cir. 1998). “As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views.” Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 698 (1991). When an agency asserts that its intent “was to clarify rather than change existing law, courts should defer to such announce-ments unless the revisions are in plain conflict with earlier interpretations.” First Nat. Bank, supra, 172 F.3d at 478. However, a court is “not required to accept an agency's representation that an order says ‘day’ when *24 it seems to us that the order says ‘night.’ ” Consumers Energy Co. v. F.E.R.C., 226 F.3d 777, 781 (6th Cir. 2000). “Any factual findings made by the Board in the course of a unit determination, if supported by substantial evidence, are conclusive.” Bry-Fern Care Center v. NLRB, 21 F.3d 706, 709 (6th Cir. 1994). “This is an objective test, and there is no room within it for deference to an agency's eccentric view of what a reasonable factfinder ought to demand.” Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 377 (1998) (emphasis included).

Discussion of Issues I. The Act Constrains The Board's Exercise Of Discretion In Determining The Appropriate Unit For Collective

Bargaining. The Board's discretion in determining the appropriate unit, though wide, is statutorily constrained. Section 9(a) pro-vides that designated representatives “in a unit appropriate for” collective bargaining “shall be the exclusive repre-sentatives of all the employees in such unit,” and section 9(b) mandates that the Board “decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit ap-propriate for collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” Thus, the “Act places upon the Board the responsibility of determining the appropriate group of employees for the bargaining unit.” Pittsburgh Plate Glass, supra, 313 U.S. at 152 (1941). This is a “nondelegable *25 obligation” and “the Board fails to perform its statutory duty when it does not exercise its discretion under that section.” NLRB v. Indianapolis Mack Sales & Service, 802 F.2d 280, 283 (7th Cir. 1986). “Because the scope of the unit is basic to and permeates the whole of the collective bargaining relationship, each unit determination, in order to further effective expression of the statutory purpose, must have a direct relevancy to the circumstances within which collective bargaining is to take place.” Pinkerton's, supra at 482 (quoting Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962)). If the Board certifies an inappropriate unit, the effect: would result in creating a fictional mold within which the parties would be required to force their bargaining rela-tionship. Such a determination could only create a state of chaos rather than foster stable collective bargaining and could hardly be said to ‘assure to employees the fullest freedom in exercising the rights guaranteed by this Act’ as contemplated by Section 9(b). Id. (quoting Kalamazoo at 139). “As a standard, the Board must comply, also, with the requirement that the unit selected must be one to effectuate the policy of the act, the policy of efficient collective bargaining,” Pittsburgh Plate Glass, supra, at 165, and “[a]n em-ployer is entitled to a reasonably adequate protection from the results of piecemeal unionization.” Pinkerton's at 485. The Board, however, is required only to select *26 an appropriate unit, not the optimal or most appropriate unit. Michigan Hospital Service Corp. v. NLRB, 472 F.2d 293, 294 (6th Cir. 1972). When the Wagner Act was enacted in 1935, section 7 was slanted exclusively in favor of union organization and collective bargaining. Section 9(b) likewise was one-sided and provided that the Board, in making unit determina-

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tions, should “insure to employees the full benefit of their right to self-organization and to collective bargaining.” The Board, not unreasonably, “interpreted this language as a mandate to promote union organization.” NLRB v. Action Automotive, Inc., 469 U.S. 490, 500 n. 3 (1985) (Justice Stevens dissenting). As a result, its unit determinations often were based in large part on the Union's desires and the extent of organization. For example, in Botany Worsted Mills, 27 NLRB 687, 690 (1940), the Board approved a petitioned-for unit limited to a single department of “wool sorters or trappers” as they had been organized by the Union, no union was seeking to organize other employees, and “it is obviously desirable that, in a determination of the appropriate unit, we render collective bargaining of the Company's employees an immediate possibility.” In an effort to correct what it perceived to be an imbalance in the Act and the Board's decisions, Congress in 1947 amended section 7 to make it wholly neutral on the question of unionization and to give employees the right to “refrain from any or all” of the activities protected by section 7, and it amended section 9(b) to *27 require that the Board's unit determinations “assure to employees the fullest freedom in exercising the rights guaranteed by this [Act.]” Thus, the Act cares not at all whether employees choose to be represented or choose to represent themselves, and the Board must give as much weight to the rights of those outside the unit as it gives to those within the unit. Congress also enacted specific limitations on the Board's unit determinations. First, recognizing the substantially distinct interests of professional employees and craft employees, Congress added two provisos--9(b)(1) and (2)-- ensuring the right of these two classes of employees to be separately represented from other employees if they so chose. See Mallinckrodt Chemical Works, 162 NLRB 387 (1966); Retail Clerks Union Local 324, 144 NLRB 1247 (1963). Congress added a third proviso, 9(b)(3), designed to preclude the Board from including guards in a unit with non-guards. See Truck Drivers Local Union 807 v. NLRB, 755 F.2d 5 (2d Cir. 1985). Finally, Congress enacted section 9(c)(5), precluding the Board from giving “controlling” weight to the extent of organization in selecting the appro-priate unit. This provision reflected Congress' dissatisfaction not with the Board's forced grouping of dissimilar groups of employees together, but with the arbitrary exclusion of employees with generally similar interests based on little more than the petitioning union's desires to limit the unit to employees who favored unionization. “The House Report on § 9(c)(5) *28 expressly criticized the Board's unit determination in Botany Worsted Mills, see H.R. Rep. No. 245, 80th Cong., 1st Sess., 37 (1947), even though the unit selected in that case consisted of a well-defined and functionally coherent group of employees.” Westward-Ho Hotel Co. v. NLRB, 437 F.2d 1110, 1115 n. 5 (9th Cir. 1971). II. The Board Abused Its Discretion By Arbitrarily And Irrationally Changing Its Long-Standing View That A

Unit Limited To CNAs Is Not An Appropriate Unit For Bargaining. Once the Board adopts a particular interpretation of the Act, that view “embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that these policies will be carried out best if the settled rule is adhered to.” Atchison, T. & S.F.Ry. Co. v. Witchita Bd. Of Trade, 412 U.S. 800, 807-808 (1973). If the Board chooses to adopt a different interpretation of the Act, it must do so forthrightly and must “supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Mfrs. Ass'n. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). A. For More Than Forty Years The Board Never Found A Unit Limited To CNAs To Be An Appropriate Bargaining

Unit. Congress initially denied the Board jurisdiction over non-profit hospitals, 29 U.S.C. § 152(2) (1970 ed.) (repealed 1974), and the Board early on exercised its *29 discretion (29 U.S.C. § 164 (c)) by declining jurisdiction over pro-prietary hospitals and other health care facilities such as nursing homes.[FN4] Glen Manor Home for the Jewish Aged v. NLRB, 474 F.2d 1145, 1148 (6th Cir. 1973) (describing jurisdictional history); see Flatbush General Hospital, 126 NLRB 144 (1960). It was not until 1967 that the Board asserted jurisdiction over proprietary hospitals, Butte Medical Properties, 168 NLRB 266 (1967), and proprietary nursing homes, University Nursing Home, Inc., 168 NLRB 263 (1967), and in 1970, it asserted jurisdiction over non-profit nursing homes. Drexel Home, Inc., 182 NLRB 1045

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(1970). Congress closed the loop in 1974 by repealing the statutory exemption for non-profit hospitals.

FN4. The Board asserted jurisdiction over health care facilities in a few isolated situations involving national defense, Hospital Hato Tejas, Inc., 111 NLRB 155 (1955), and where the facility was located in the District of Columbia. Central Dispensary & Emergency Hospital, 44 NLRB 533 (1942).

In the early days of its experience with health care facilities, there was little litigation over the appropriate scope of the bargaining unit, and a comprehensive nonprofessional unit became a well-accepted appropriate unit. Most of the litigation that did occur involved whether licensed practical nurses (LPNs) should be included in the unit or instead would constitute a separate unit, with the Board reaching different conclusions in different cases. Compare, e.g., NLRB v. Sweetwater Hosp. Ass'n., 604 F.2d 454 (6th Cir. 1979) (LPNs included with other technical employees in separate unit); *30Extendicare of West Virginia, Inc., 203 NLRB 1232 (1973) (excluding LPNs in separate unit); with Jackson Manor Nursing Home, Inc., 194 NLRB 892 (1972) (LPNs must be included in unit with other nonprofes-sionals). When Congress amended the Act in 1974 to reach proprietary hospitals, it rejected Senator Taft's bill that would have placed specific limits on the number of units that could be found appropriate, and chose instead to issue the following admonition: 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 No. 50 (1974), and Woodland Park Hospital, 205 NLRB No. 144 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170 (1973).* * By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision. Sweetwater Hosp., supra, at 631 n. 13 (citing S.Rep. No. 766, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974 U.S.Code Cong. & Ad. News 3946, 3950, and in Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974, Public Law 93-360 (S.3203), at 8 (1974); H.R.Rep. No. 1051, 93d Cong., 2d Sess. 7 (1974), reprinted in Legis. Hist. at 269). Following the 1974 amendments, extensive unit litigation occurred, with particular focus upon the impact of the Congressional admonition. The Board and *31 the courts jousted for many years over this issue with the courts gen-erally giving greater legal significance to the admonition than the Board. See Trustees of Masonic Hall & Asylum Fund v. NLRB, 699 F.2d 626, 632 (2d Cir. 1983) (admonition represents legal standard binding on Board). For the most part, the Board applied its long-established “community of interests” standard (with a shortlived deviation to a “disparity of interests” standard) to health care unit determinations, but in doing so, always considered the admonition. There thus developed six basic units that were accepted as “appropriate for unit purposes: registered nurses, physicians, all pro-fessionals excluding registered nurses and physicians, service and maintenance, technical, and office clerical em-ployees,” and only two narrower units ever being deemed appropriate: powerhouse employees (stationary engineers or boiler operators) and maintenance units. Allegheny General Hospital, 239 NLRB 872, 878 (1978), enf. den., 608 F.2d 965 (3d Cir. 1979). In 1990, the Board adopted a rule announcing eight and only eight (except in “extraordinary” circumstances) appro-priate units in acute care hospitals. These units were largely identical to those previously found appropriate, but added a unit for guards (statutorily required), specifically separated out skilled maintenance, and redefined office clericals as a business office clerical unit. 29 C.F.R. § 103.30. This rule was approved by the Supreme Court in *32American Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991). The Court noted that Congress had not placed specific limits on the number of appropriate units in health care facilities and that the Congressional admonition was “a form of notice to the Board that if it did not give appropriate consideration to the problem of proliferation in this industry, Congress might respond with a legislative remedy.” Id. at 617.

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In Park Manor, supra, 305 NLRB at 875, the Board decided that in nursing homes and other health care facilities not covered by the rule, it would consider not only the standard community of interest factors, but also “those factors considered relevant by the Board in its rulemaking proceedings, the evidence presented during rulemaking with re-spect 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.” The Board expressed the “hope” that “certain recurring factual patterns would emerge and illustrate which units are typically appropriate.” In fact, over the next twenty years, “typically appropriate” units did develop that were essentially coextensive with the units found appropriate under the rule: (1) RNs, (2) all technical employees, (3) skilled maintenance employees, (4) business office clericals, and (5) nonprofessional employees (a broad service and maintenance unit with possible exclusion of technical employees, maintenance employees, and/or business office clericals). See CGE Caresystems, Inc., 328 NLRB 748 (1999) (approving service and maintenance unit excluding business *33 office clericals); Lincoln Park Nursing & Convalescent Home, Inc., 318 NLRB 1160 (1995) (excluding technical employees and business office clericals from service and maintenance unit, but including other clericals such as nursing department secretar-ies, payroll clerk, and receptionists); Hillhaven Convalescent Center, 318 NLRB 1017, 1017 (1995) ( “whether or not technical employees may constitute a separate appropriate unit depends on their relationship to other nonprofessional employees”); Hebrew Home & Hospital, Inc., 311 NLRB 1400 (1993) (skilled maintenance unit found appropriate). In no case, however, did the Board ever approve a unit limited to CNAs or permit a union to carve out of a nonpro-fessional unit any groups other than technical, maintenance, and/or business office employees. See Virtua Health, Inc., 344 NLRB 604 (2005) (unit of paramedics excluding all other technical employees inappropriate). Indeed, in Dela-ware Health Corporation, Case No. 05-RC-16610 (December 3, 2010),[FN5] the Regional Director explicitly rejected the appropriateness of a unit limited solely to CNAs. On facts very similar to those in this case, the Director found that the smallest appropriate unit was a “service and maintenance *34 unit” including CNAs, activity aides, maintenance assistants, receptionists, porters, dietary aides, cooks, and Meals on Wheels aides and that “[a] CNA-only unit would unnecessarily lead to a proliferation of bargaining units, and would exclude employees who share a close community of interest with the CNAs.” Id. at 20.

FN5. Regional Director decisions can be found at http:// www.nlrb.gov/cases-decisions/case-decisions/regional-election-decisions. Section 3(b) of the Act, 29 U.S.C. § 153(b), authorizes the Board to delegate to its regional directors the Board's power to determine the ap-propriate unit. The Board's rules and regulations provide that the Director's decision “shall be final,” subject to the filing of a request for review, which will be granted “only where compelling reasons exist therefore.” 29 C.F.R. § 102.67 (b), (c).

Similarly, in Care One, LLC, Case No. 22-RC-12116 (August 9, 2001), the Regional Director found a petitioned-for unit of dietary, housekeeping, and laundry employees to be inappropriate as it would fragment the traditional senior care facility unit by excluding many employees who shared a common community of interest. The Director deter-mined that the smallest appropriate unit would also include CNAs, maintenance employees, and recreation/therapy aides. B. The Board Offers No Reasoned Explanation For Changing Its Long-Held View That A Unit Limited To CNAs Is

Inappropriate And That Health Care Facilities Are Unique. The Board's conclusion in this case that CNAs represent an appropriate unit for bargaining stands in stark contrast to its long-held contrary view. KTCR assumes, for purposes of this appeal, that the Board acted within its discretion (albeit unwisely) in overruling Park Manor and its “empirical community of interests” test and in deciding to return to the traditional “community of interests” test. Discarding the Park Manor analysis, however, does not rationally ex-plain why a CNA-only unit is suddenly appropriate inasmuch as it was deemed inappropriate by the Board for more than forty years, both before and after Park *35 Manor. Although clothed in different garb, the Park Manor analysis effectively yielded the same unit determinations the Board had always reached in nursing homes and other health care

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facilities. The Board majority acknowledged as much: “we are simply unable to understand how a ‘pragmatic or empirical community of interests approach’ differs meaningfully from our traditional community-of-interest ap-proach.” (Specialty Healthcare, p. 7, App. 25). Park Manor aside, the question remains whether the traditional community of interests test must give at least some consideration to the unique nature of health care facilities and the adverse effects of undue unit proliferation. Since the Supreme Court's 1991 decision in American Hosp., it has been well understood that the Congressional admonition against undue unit proliferation in the health care industry does not legally bind the Board in any specific manner or restrict the Board from exercising its discretion to determine the appropriate unit. Yet, until this decision, the Board had never adopted the view that health care facilities were no different than any other industry or that the Board was free to wholly ignore the issue of undue unit proliferation in applying the traditional community of interests standard to health care facilities. To the contrary, it consistently expressed the view that health care facilities involved unique considerations and that the Board's consideration of all unit issues in the health care industry “must necessarily take place against this background of avoidance of undue proliferation.” *36Mercy Hospitals of Sacramento, Inc., 217 NLRB 765, 766 (1975); accord, Manor Healthcare Corp., 285 NLRB 224, 226 (1987) (“[W]e are aware of the se-riousness of Congress' concern that in making unit determinations we seek to avoid a unit structure that poses a real threat of disruptions to the continuity of patient care through the spread of work stoppages and other adverse effects of labor disputes.”) More recently, the Board has noted that the “basis for the admonition was Congress' concern that multiple bargaining units in healthcare could lead to increased strikes, jurisdictional disputes, and wage whipsawing that might disrupt the provision of health care,” Catholic Healthcare West, 344 NLRB 790, 792 (2005); see generally, Masonic Hall, supra, at 630-632 (discussing specific concerns of Congress). Here, however, the Board has cast aside any consideration of the uniqueness of the health care industry or the potential for unit proliferation, and it has done so without any persuasive reason. In American Hosp., the Board did not contend it was free to wholly ignore the Congressional admonition, and the Court found that “[e]xamining the record of the Board's rulemaking proceeding, we find that it gave extensive consideration to this very issue.” 499 U.S. at 616-617. The Court was careful to note the limited scope of its review, which pretermitted the “propriety of the specific unit determinations, or the importance of avoiding work stoppages in acute care hospitals.” Id. at 620. *37 Nothing in American Hosp. or the Act itself suggests that the Board may, in making unit determinations, wholly disregard the special concerns of health care institutions and the criticality of uninterrupted health care to this nation. As this Court has recognized, “It is, of course apparent that regardless of the particular import accorded the admoni-tion, giving consideration to the prevention of undue proliferation of units inherently favors the employer.” Catherine McAuley, supra, at 346. The Board notes that its healthcare rule (29 C.F.R. § 103.30) specifically does not apply to nursing homes. (Specialty Healthcare, p. 6, App. 24). That is a legitimate reason not to apply the rule, but it hardly explains why nursing homes should be treated as if they were factories. The Board dismisses the significance of the evidence it received during the rule-making process regarding nursing homes as being “limited” and more than “two decades” old and of little value given that the industry was “in a period of rapid transition” at the time of the rule-making process. (Id.). But despite soliciting and receiving numerous amicus briefs, the Board cites no new empirical evidence, data, or even experience to explain why a unit that had been deemed inappropriate for more than forty years should now be found to be ap-propriate. Nor does it explain why its findings during rulemaking that “nursing home staff are concerned not only with their residents' physical well-being but also their social and psychological needs,” that “there is less diversity in *38 nursing homes among professional, technical and service employees, and the staff is more functionally integrated,” that “almost no aspect of nursing home care is in the exclusive domain of any one group of employees,” and “there appears to be a greater overlap of functions as well as greater work contact between the various nursing home non-professionals” no longer hold true. 53 FR 33900, 33928 (1988). KTCR suggests that while there have been changes in the long-term care industry, those changes have increased, rather than reduced, the community of interests shared by all nonprofessional employees. The Board majority has offered nothing of an empirical nature that would justify its new-found position that CNAs represent an appropriate unit for bargaining.

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C. The Board's Decision Does Not Promote Efficient Bargaining And Gives No Weight To The Legitimate Interests Of

Employees Excluded From The Unit Or Employers. What really drives the Board's decision is the belief that because unions are the master of their representation petitions, they should be free to engage in piecemeal organizing, and the employer's interests in the unit are of no consequence. To be sure, “the initiative in selecting an appropriate unit resides with the employees,” American Hosp. at 610, but that a union initiates the process by filing a petition for a specific unit of employees does not mean the Board must rou-tinely accept the designated unit as appropriate. It is the Board, not the parties, who is tasked with determining the appropriate unit. Nor does the established *39 principle that the unit selected need only be “appropriate,” not the “most appropriate” unit, justify giving the union's desires any special weight. The Board cites to the mandate in section 9(b) that the Board “assure to employees the fullest freedom in exercising the rights guaranteed by the Act,” which include the “rights of self-organization and collective bargaining,” and to the constitutional right to “freedom of association.” (Specialty Healthcare, pp. 9, 18 n. 18; App. 27, 36). None of these rights, however, is unlimited, and the Board's obligation to provide the “fullest freedom” in exercising these rights says nothing about how the Board should assure such freedom. It is not the employees themselves who select the unit for which the petition is filed; rather, the petitioning union makes a strategic decision based on its perceived ability to receive a majority of the votes cast. Also, a union does not merely represent those employees who voluntarily choose to join. Because of the exclusivity provisions of the Act, a duly designated union represents all employees within the unit, even those who voted against it or who choose not to join or pay dues, and the individual employee's bargaining power is extinguished. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, (1967). The Board's reliance on “freedom of association” principles implies that employees have some right to pick and choose the employees they wish to include and the ones they desire to exclude. Nothing could be further from the truth. It is *40 the Board who has the “nondelegable obligation” to decide the appropriate unit for bargaining, Indi-anapolis Mack, supra, 802 F.2d at 283, and the lynchpin for that determination is the “community of interests” among the employees regarding their wages, hours, and terms and conditions of employment, not the whims of the em-ployees. Indeed, employee desires “is not a relevant factor in this circuit.” Catherine McAuley, supra, at 345. Further, the right to engage in collective bargaining does not merely impact employees within the selected unit; it impacts those outside the unit. By tying the unit to the community of interests factors, the Board ensures that the unit encompasses “a group of employees with a sufficient commonality of circumstances to ensure against the submerg-ence of a minority with distinctively different interests in the terms and conditions of their employment.” Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 64 (1975) (emphasis supplied). If the unit is too broad, it may lack the cohesiveness necessary for effective bargaining, but if it is too narrow and excludes em-ployees who share a close community of interests with the included employees, it may effectively deny the excluded employees any meaningful opportunity to be represented or to engage in collective bargaining, at least in any unit that possesses any significant bargaining power. For example, the unit found appropriate here included at least fifty-three CNAs and excluded approximately thirty-three other *41 nonprofessional employees. Even if the excluded employees could organize as a separate unit, their bargaining strength would be severely diluted in comparison to the strength of a single combined unit with the CNAs. And if the dietary aides desire representation, but the other excluded em-ployees do not, the dietary aides will be denied any opportunity at representation, unless allowed to organize in their own separate unit. The Board's decision leaves open this possibility, but the impact would render these residual units small in size and splintered into irrational fragments. Efficient collective bargaining is clearly disserved by micro-units limited to individual job classifications. Further, the notion that the employer's interests are irrelevant is illogical. Collective bargaining is a two-way street, and both parties have an interest in efficient bargaining. “[P]iecemeal unionization” is inherently inefficient, and employers are entitled to reasonable protection from its consequences. Pinkerton's, Inc., supra, 428 F.2d at 485. As this Court has recognized, “the scope of the unit is basic to and permeates the whole of the collective bargaining

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relationship.” Id. at 482 (quoting Kalamazoo Paper Box, supra, 136 NLRB at 137). Even apart from considerations of representation rights and meaningful collective bargaining, the unit determination is important because the manner in which employees within the unit exercise their statutory rights will inevitably impact those employees not *42 within the unit. A strike of CNAs could well cause a breakdown in the entire operation of the nursing home, thereby im-pacting the jobs of those not on strike. The express language and history of the Act strongly suggest that a unit limited to a single nonprofessional, unskilled job classification (regardless of industry) will rarely, if ever, be appropriate. Indeed, that is the analysis applied by the Board in Botany Worsted Mills and specifically criticized by Congress when it amended the Act in 1947. Since these amendments, the Board has generally refrained from subdividing standard and clearly appropriate units except in three circumstances. First, as discussed above, section 9(b)(1) allows professional employees to organize separately from nonprofessionals. Although the Act does not explicitly prohibit the Board from subdividing a professional unit, the Board has done so in the health care field only with respect to registered nurses and physicians. All other professionals must organize across professional lines. Thus, even though pharmacists constitute a “distinct and homogeneous” group of employees with separate interests (at least based on their job duties) from other professionals, the Board does not permit them to organize as a separate unit. The second circumstance where a “distinct and homogeneous” classi-fication is permitted to organize as a separate unit is with craft employees. Carpenters need not organize with iron-workers who need not organize with sheet metal workers. This exception is a function of section 9(b)(2). The third exception is for *43 employees who may not qualify as professional or craft employees, but who are highly skilled and highly paid, most notably skilled maintenance employees. See Ore-Ida Foods, Inc., 313 NLRB 1016 (1994), enf'd, 66 F.3d 328 (7th Cir. 1995) (Table). The common elements of the situations where either Congress has mandated, or the Board has permitted, “distinct and homogeneous” job classifications to be carved out of a broader and more standard unit appear to be that the specific job classification (1) is highly or uniquely skilled, (2) is highly paid, (3) has extensive educational or experience requirements, and (4) has a long history of separate representation. Prior to Specialty Healthcare, the “distinct and homogeneous” classification analysis had never been applied to lowly skilled, lowly paid, lowly educated, nonpro-fessional employees with no history of separate representation such as CNAs. This is not to diminish the importance of the work performed by CNAs, which is critical to the operation of a nursing home, but it simply does not constitute the type of distinct interests that Congress envisioned, or that the Board historically has held, would warrant a separate bargaining unit. Indeed, it is a principle without any limitations.

*44 III. The Board Abused Its Discretion And Violated The Act By “Clarifying” The Law To Require That Employees Not Sought By The Union Share An “Overwhelming Community Of Interests” With The Peti-

tioned-For Employees. Perhaps recognizing that its decision to find appropriate a unit limited to CNAs represents an unprecedented change in the Board's view of the Act and the absence of any rational statutory or policy basis for this change, the Board-- despite the absence of any outcry for change--took the opportunity to purportedly “clarify” the legal burden imposed on an employer who seeks to expand the petitioned-for unit to include other groups of employees. According to the Board majority, the burden is on the employer to establish that the excluded employees share an “overwhelming community of interests” with the included employees. (Specialty Healthcare, p. 13, App. 31). There are two separate problems with this aspect of the Board's decision. First, application of the overwhelming community of interests standard to an initial unit determination cannot plausibly or in good faith be passed off as merely a “clarification” of the law. Instead, it is nothing short of a fundamental change in the law. The Board may not purport to clarify legal standards when, in fact, it has altered those standards. Here, “the revisions are in plain conflict with earlier interpretations,” First Nat. Bank, supra, 172 F.3d at 478, and a court is “not required to accept an agency's representation that an order says ‘day’ when it seems to us that the order says ‘night.’ ” Consumers Energy Co., supra, 226 F.3d at 781. “To totally abdicate would allow an agency to make *45 substantive changes to rules retroactively under the guise of clarifications, which is clearly prohibited.” First Nat. Bank at 479. Second, the Board's application of an “overwhelming community of interests” standard makes the extent of organization controlling, and is nothing more than a resurrection of the dis-

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credited Botany Worsted Mills type of unit determination. We discuss both issues in turn. A. The Board Historically Has Applied The “Overwhelming” Community Of Interests Standard Only In Accretion

Cases. In Initial Unit Determinations, It Historically Has Included All Employees Who Share A “Close” Community of Interests With The Petitioned-For Employees. The Two Standards Are Dramatically Different And Produce Op-

posite Results. Although the Board has never viewed its role as one of determining the most appropriate unit, its post-1947 decisions eschewed any practice of finding a well-defined and functionally coherent group of employees to be an appropriate unit solely on that basis and without reference to any community of interests that this group shared with other em-ployees. As the Board restated only one year before issuing Specialty Healthcare: However, the Board's inquiry “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 separate unit.” Newton-Wellesley Hospital, 250 NLRB 409, 411-412 (1980) (emphasis added). The Board has a long history of applying *46 this standard in initial unit determinations. See, e.g., Monsanto Co., 183 NLRB 415 (1970) (maintenance unit sought is not composed of a distinct and homogeneous group of employees with interests separate from those of other employees), and Harrah's Illinois Corp., 319 NLRB 749, 750 (1995) (same). Wheeling Island Gaming, Inc., 355 NLRB No. 127, n. 2 (2010). The “sufficiently distinct” analysis comports with the principle that unit determinations should guard “against the submergence of a minority with distinctively different interests in the terms and conditions of their employment.” Emporium Capwell, supra, 420 U.S. at 64 (1975). But if the terms and conditions of employment of two groups of employees are not “distinctively different,” any forced separation of the two groups serves no statutory purpose and is inherently arbitrary. The Board has recognized as much by historically including over the union's objection employees who share a “close” community of interests with the petitioned-for employees. See Brunswick Corp., 257 NLRB 868, 869 (1981) (“prom attendants share such a close community of interest with the requested group employees that they must be included in the unit”). The “overwhelming” community of interests standard originated in Safeway Stores, Inc., 256 NLRB 918 (1981), where the Board considered whether a newly created delicatessen department could be “accreted” to an existing unit of bakery workers. Because accretion denies the accreted employees the right to participate in the selection of the representative, the Board's policy is to find an accretion *47 “only where the additional employees have little or no separate group identity and thus cannot be considered a separate appropriate unit and when the additional employees share an overwhelming community of interest with the preexisting unit to which they are accreted.” Id. at 918. Over the next thirty years, with only isolated exception, the Board applied the overwhelming community of interests standard solely in accretion cases. The only case of which KTCR is aware in which the Board itself (as opposed to one of its regional directors) applied the overwhelming community of interests standard to an initial unit determination is Lundy Packing Co., 314 NLRB 1042, 1043 (1994), enforcement den., 68 F.3d 1577 (4th Cir. 1995), where the Board excluded quality control em-ployees because they did not “share such an overwhelming community of interest with the petitioned-for production and maintenance employees as to mandate their inclusion in the unit despite the Petitioners' objections.” As discussed more fully below, however, the Fourth Circuit squarely rejected the Board's application of an “overwhelming” community of interests standard as being improperly imported from accretion cases and “run[ning] afoul of § 9(c)(5).” 68 F.3d at 1582.

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The case the Board primarily relies upon as supporting the use of an overwhelming community of interests standard to initial unit determinations is Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008). That case arose out *48 of a Regional Director's determination that Musical Instrument Technicians (MITs) need not be included in a unit of stage employees over the union's objection. Relying on the Board's Lundy Packing decision, the Regional Director found that the MITs did not share an overwhelming community of interests with the stage employees. Blue Man Vegas, LLC, 28-RC-6440 (April 28, 2006). The Board subsequently denied the employer's request for review, and following the requisite unfair labor practice charge, the employer sought review in the D.C. Circuit. Although the court accepted the Board's use of an overwhelming community of interests standard, its decision was largely factual in nature. Of particular significance in that case was the fact that the stage employees sought by the union previously had been employed by the Luxor Hotel and had constituted a separate collective bargaining unit, whereas the MITs had been employed directly by the employer. When the employer moved its operations to the Venetian Hotel, the stage employees became employees of the employer. Thus, the stage employees and MITs had existed for a period of time as separate units. KTCR respectfully submits that although the D.C. Circuit arguably may have reached the right result in Blue Man Vegas, its decision improperly intermixes accretion principles with initial unit determination principles and is neither consistent with the Act nor the Board's historical interpretation of the Act. *49 Whatever the underlying merits of unifying the accretion and initial unit determination standards may be, the fact remains that this is the first time since Taft-Hartley was enacted that the Board has clearly and affirmatively an-nounced that henceforth the overwhelming community of interests standard will be rigorously applied to initial unit determinations. And there can be no doubt that this is a substantively different standard than the “close” or “suffi-ciently distinct” community of interests standard the Board routinely applied for sixty years. Assuming, arguendo, the Board could rationally adopt such a standard for initial unit determinations, it cannot do so under the guise of clari-fication. Rather, it must forthrightly acknowledge the change, and it must provide reasonable explanations for effec-tuating such a drastic change in its interpretation of section 9. The Board clearly did not offer a reasoned explanation for making a change it denied making. This procedural reason alone would require that the petition for review be granted and the case remanded for further proceedings. Substantively, however, the “overwhelming” community of interests standard fares no better.

B. The Board's Decision Runs Afoul Of Section 9(c)(5). The precise scope of § 9(c)(5) is not well defined. In NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438 (1965), the Supreme Court held that “Congress intended to overrule Board decisions where the unit determined could only be supported on the basis of the extent of organization,” but did not “prohibit the *50 Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination.” Id. at 441-442. The Court, however, gave little guidance on the proper application of this Congressional mandate, and the courts of appeals have struggled, somewhat inconsistently, to define a standard by which an alleged § 9(c)(5) violation can be assessed. As one court has noted, “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 International Ass'n v. NLRB, 414 F.2d 1194, 1199-1200 (D.C. Cir. 1969). According to the D.C. Circuit, “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. The Third Circuit has held that “the effect of 9(c)(5) is to require the Board to determine whether a unit is in and of itself appropriate, apart from the extent to which the employees are organized” and that “the Board must not be permitted to evade 9(c)(5) by purporting to base its decision on other factors when in truth it has been controlled by the extent of employee organ-ization.” NLRB v. Western & Southern Life Ins. Co., 391 F.2d 119, 122 (3d Cir. 1968). According to the Seventh Circuit, “[The extent of organization] is controlling if no other factor plays a significant role in determining the out-come,” *51NLRB v. Lake County Ass'n for the Retarded, Inc., 128 F.3d 1181, 1188 (7th Cir. 1997). The Fourth Circuit has held that it may not be the “dominant” factor. Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 120 (4th Cir. 1978). This Court has cited § 9(c)(5) in a number of cases for the proposition that the extent of organization may not be “controlling,” but has never expounded on what must be shown to establish a violation. See Pinkerton's, supra, at 481.

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Several court decisions finding violations of § 9(c)(5), however, do illustrate the types of unit determinations that will run afoul of § 9(c)(5). In NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir. 1995), the court found that the Board violated 9(c)(5) by applying an “overwhelming” community of interests standard and ignoring prior decisions to exclude quality control employees from a unit of production and maintenance employees. As the court noted, this standard was imported from accretion cases and was not directly applicable to an initial unit determination. The court held that “[b]y presuming 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 organization.” Id. at 1581. In Westward-Ho Hotel Co. v. NLRB, 437 F.2d 1110 (9th Cir. 1971), the court overturned a Board determi-nation that a unit of the hotel's kitchen employees, excluding other restaurant employees, was appropriate. The court concluded that the decision was inconsistent with prior Board precedent and that “Botany Worsted Mills on its facts so closely resembles the case now before *52 us that respect for Congressional intent in the enactment of § 9(c)(5) pre-cludes enforcement of the Board's order here.” Id. at 1115, n. 5. Although the statutory command does not lend itself to concise definition, KTCR respectfully submits that the most appropriate analysis is for the court to examine the Board's unit determination in its entirety to see whether the extent of organization made a difference in the outcome. If the unit determination would have been different, but for the extent of organization, the result has been controlled by that factor. Although there may be multiple other “control-ling” factors, 9(c)(5) is concerned only with the role played by the extent of organization. And, of course, given Congress' specific disapproval of Botany Worsted Mills, a comparison to that decision is always appropriate. This analysis most closely resembles that adopted by the Third Circuit and is consistent with this Court's view that em-ployee desires “is not a relevant factor in this circuit.” Catherine McAuley, supra, at 345. Under this analysis, it is clear that the Board's new method of making unit determinations gives excessive weight to the Union's desires and makes those desires controlling in many cases, particularly where the union defines the unit in terms of a single job classification. This is so because of the cumulative impact of the steps the Board follows. Step one allows the union to initially define the unit the Board will review for appropriateness. There is nothing inherently wrong with *53 this step by itself, but clearly the Board exercises no discretion in formulating a proposed unit. Step 2, contrary to prior law, now holds essentially as a rule (although the Board engaged in no rulemaking) that the proposed unit should first be reviewed in isolation and that a unit limited to a single job classification will always be presump-tively appropriate inasmuch as employees within a single classification always share a community of interests among themselves. Step 3, also contrary to prior law, now mandates that the presumptively appropriate proposed unit be-comes the unit “selected” by the Board, unless the employer can demonstrate that other classifications share an “overwhelming” community of interests with the unit proposed by the union. Given the Board's view of “over-whelming,” this is an impossible burden to satisfy if the union has limited its proposed unit to a discrete job classifi-cation. Because two different job classifications inherently (except when they are different in name only) have dif-ferent duties and functions, it is difficult to conceive of a situation in which other community of interest factors could be said to “overwhelm” these differences. The Board's decisions postdating Specialty Healthcare are illustrative. DTG Operations, Inc., 357 NLRB No. 175 (2011) (car rental agents constitute appropriate unit of unskilled, nonprofes-sional employees despite functional integration, common supervision, and common wages); Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163 (2011) (subset of technical employees *54 found appropriate); Extendicare Homes, Inc., 18-RC-070382 (December 30, 2011), review den., 2012 WL 252255 (N.L.R.B.) (January 24, 2012) (unit of Nursing Assistants and Trained Medical Aides found appropriate); Prevost Car U.S. d/b/a Nova Bus, 3-RC-71843 (February 17, 2012), review den., 2012 WL 870846 (N.L.R.B.) (March 14, 2012) (unit of assemblers found appro-priate). As dissenting Board Member Hayes noted in DTG, supra: Prior to Specialty Healthcare, the phrase “overwhelming community of interests” may have been a correct factual description of a grouping of employees in a particular case, but it was not legally required. Now, however, a peti-tioned-for unit of employees will be found appropriate, if they share a community of interests among themselves, unless a party contesting it can prove that other employees share an overwhelming community of interests with them. . . . .

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The larger truth is that it is difficult to imagine a multiclassification, multifunction workplace where the jobs of all workers are nevertheless so homogeneous that such distinctions cannot be drawn. As long as a union does not make the mistake of petitioning for a unit that consists of only part of a group of employees in a particular classification, department, or function, i.e., a so-called fractured unit, it will be impossible for a party to prove that an overwhelming community of interests exists with excluded employees. Board review of the scope of the unit has now been rendered largely irrelevant. It is the union's choice, and the likelihood is that most unions will choose to organize incrementally, petitioning for units of the smallest scale possible. The days of traditional all-inclusive production and maintenance units, technical units, or service and maintenance units--much less wall-to-wall plant units--are numbered. I adhere to the previously expressed view that giving the Board's imprimatur to this *55 balkanization represents an abdication of our responsibility under Section 9 and may well disrupt labor relations stability by requiring a constant process of bargaining for each micro-unit as well as pitting the narrow interests of employees in one such unit against those in other units. (footnotes omitted). There will be isolated cases where a union proposes a unit that is inappropriate on its face, such as where the union petitions for a non-homogeneous unit that is composed of multiple job classifications, but arbitrarily excludes other classifications that share an identical community of interest. The Board's decision in Odwalla, Inc., 357 NLRB No. 132 (2011) is such a case. Beyond that, however, selection of the unit lies exclusively in the hands of the union. The Board's specific unit determination in this case is discussed below in Part VI. For now, it is sufficient to say that the Board's decision raises significant issues under § 9(c)(5).

IV. The Board's New Analysis Effectively Delegates Away The Board's Obligation To Determine The Ap-propriate Unit In Each Case.

Even if this Court should determine that the Board's decision does not violate § 9(c)(5), there remains the issue of who really is selecting the appropriate unit. Whatever weight the Board may be permitted to give to the extent of organi-zation, one thing can be stated with certainty: The Board must exercise its discretion in each case to determine the appropriate unit; it may not delegate that decision to anyone else, including any party to the proceeding. Yet, that is *56 precisely what the Board has done through the rigid step analysis discussed above in Part III. The Board permits the union to define the unit to be reviewed by the Board, and it permits the union to define that unit in terms of single job classifications. The Board then places on the employer's shoulders the impossible burden of showing that the community of interests between the unit defined by the union and other employee groups excluded by the union are “overwhelming.” When predictably this burden cannot be satisfied, the Board “selects” the unit originally proposed by the union. This mechanical analysis effectively delegates away the Board's statutory obligation to decide in each case the appropriate unit for collective bargaining by removing all meaningful discretion and making the determination a functionary process, at least where the union petitions for a discrete classification of employees.

V. The Board's Decision Making Process Constitutes An Abuse Of Discretion. The Board also abused its discretion by using adjudication instead of rule-making to alter the governing legal standard for determining appropriate bargaining units in all industries. The Act's rule-making provisions, 29 U.S.C. § 156, “which the Board would avoid, were designed to assure fairness and mature consideration of rules of general appli-cation. . . . They may not be avoided by the process of making rules in the course of adjudicatory proceedings.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969). The Board has discretion to choose *57 between adjudication and rulemaking, NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974), but “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. Specialty Healthcare represents such a situation. In particular, the fact that neither KTCR nor the Union asked the Board to use this pro-ceeding as a platform for drastically altering the governing legal standard counsels strongly in favor of finding the

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majority's decision to do so via adjudication instead of rulemaking an abuse of discretion.

VI. The CNAs Do Not Have Distinctively Different Interests From Other Nonprofessional Employees That Would Warrant Separate Representation.

For the reasons discussed above, the Board abused its discretion in determining that KTCR's CNAs constitute an appropriate unit for bargaining. This unit clearly was inappropriate for more than forty years, and the Board's ration-ales are unreasonable and statutorily infirm. The community of interests that CNAs share with each other are not distinctively different from the interests they share with all other nonprofessional employees. The Board relies heavily upon the unique job duties of the CNAs, but in doing so fails to see the forest for the trees. “The primary concern or ‘touchstone’ of a bargaining unit determination is the question of whether all the members have a mutual interest in wages, hours, and other terms and conditions of employment,” *58 Catherine McAuley at 345. While individual job duties are obviously encompassed within “other terms and conditions of employment,” such duties are almost universally established by the employer and constitute but an infinitesimal part of the collective bargaining process. The notion that appropriate units for bargaining should be based on job duties causes the tip of the tail to wag the dog. The duties of the CNAs are unique only in the individual tasks they perform. They are not unique in skills, education, or working conditions. Feeding, bathing, dressing, and toileting residents is different from cooking meals, washing dishes, conducting sing-a-longs, repairing toilets, stocking supply closets, preparing patient charts, and answering telephone calls in the same manner that a baseball team's first baseman is different from its left fielder, catcher, and pitcher. They all have specific responsibilities that are critical to the organization's mission, whether it be providing care to a frail and elderly patient or winning a baseball game. There is total functional integration. The Board also relies upon the CNAs' separate immediate supervisors, but again loses sight of what is truly important. Collective bargaining seldom focuses upon the relationship between employees and their specific supervisors. Indeed, CNAs may have different supervisors depending upon the floor to which they are assigned and the shifts and days of the week they work. Collective bargaining deals with the broader issues that transcend individual supervisors. At KTCR, there *59 is a single Employee Handbook that addresses the policies, procedures, and rules that vitally impact the work lives of employees. These issues are centrally determined and all nonprofessional employees are subject to the same policies and procedures. See Pinkerton's, supra at 484 (one of controlling factors is “where the labor policy for the entire group is determined”). Even more importantly, there is little difference in wages between the various nonprofessional job classifications, all are paid hourly, all receive overtime, and all share identical benefits. They work in the same facility, see each other on a daily basis, and face the same types of problems. “Functional integration implicates not only employee contacts but also the interrelation of the actual operations of the facilities.” Bry-Fern, supra, 21 F.3d at 710. Their common in-terests far outweigh the small differences that are inherent between different jobs. The Board majority's assertion that “there is no undue proliferation or even danger of undue proliferation,” (Specialty Healthcare, p. 14; App. 32) is disingenuous. The Board decision is not confined to the walls of KTCR's Mobile fa-cility, but makes every nonprofessional job classification at every facility not covered by the rule a viable bargaining unit. The Board's determination that the CNAs constitute an appropriate unit is directly contrary to the Board's interpreta-tion of the Act for more than forty years. *60 It is a throw-back to the discredited Botany Worsted Mills analysis that focused on the narrow interests of individual job classifications to the exclusion of the broader interests and issues that dominate the collective bargaining process. The determination cannot be justified except on the ground that it is ex-actly what the Union wants and comports with the group of employees successfully organized by the Union. It rep-

2012 WL 1387314 (C.A.6) Page 28


resents an abdication of the Board's obligation under § 9(b) to exercise its discretion to select the appropriate unit and violates § 9(c)(5). The Board has abused its wide discretion.

*61 CONCLUSION KTCR respectfully requests that this Court grant the petition for review and deny the Board's cross-application for enforcement.

Appendix not available. KINDRED NURSING CENTERS EAST, LLC, dba Kindred Transitional Care and Rehabilitation - Mobile, fka Specialty Healthcare and Rehabilitation Center of Mobile, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Intervenor. 2012 WL 1387314 (C.A.6 ) (Appellate Brief ) END OF DOCUMENT

Documents

2012 WL 1387314 (C.A.6) For Dockets See 12-1174 , 12-1027