Kindred Nursing Centers East, LLC v. National Labor Relations Board
2013 U.S. App. LEXIS 16919
| 6th Cir. | 2013Background
- Kindred operates a 170-bed Mobile, Alabama nursing home with CNAs as core staff and eight other departments.
- CNAs and other staff are organized into a petitioned bargaining unit focused on CNAs (about 53 full-time and part-time).
- Kindred sought to include ~86 additional non-supervisory service and maintenance employees in the unit; the Board Regional Director denied expansion.
- Board approved a CNA-only unit; union won the election; Kindred contested the Board’s unit determination in court.
- Specialty Healthcare II (Board decision) adopted an overwhelming-community-of-interest standard and clarified a burden-shifting framework for unit expansion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Specialty Healthcare II adopts a new unit-formation approach | Kindred: adopts new approach, not traditional community-of-interest. | Board: adopts clarified, defensible test consistent with precedent. | Board did not abuse discretion; clarified approach is permissible. |
| Whether the overwhelming-community-of-interest test violates 9(c)(5) | 9(c)(5) restricts relying on union organization; test impermissible. | 9(c)(5) allows considering organization as a non-controlling factor; test valid. | Test consistent with 9(c)(5); not a violation. |
| Whether the Board acted within its discretion by adjudicating rules instead of rulemaking | Board circumvented notice-and-comment requirements via adjudication. | Bell Aerospace permits new principles in adjudication with input opportunities. | Discretionary; adjudication valid where valid notice and input were obtained. |
| Whether the Board’s rationale for CNA-only unit is reasonably defensible | Kindred contends the CNA unit is too narrow absent broader employee inclusion. | Board found CNA unit appropriate based on community of interest and clarified standards. | Yes; Board’s reasoning was cogent and defensible. |
Key Cases Cited
- Park Manor Care Center, 305 NLRB 135 (1991) (test for appropriate unit in nursing homes)
- Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008) (overwhelming-community-of-interest standard support)
- NLRB v. Metro. Life Ins. Co., 380 U.S. 438 (1965) (consider extent of organization as factor, not controlling)
- American Hosp. Ass’n v. NLRB, 499 U.S. 606 (1991) (community-of-interest framework for unit determinations)
- Cont’l Web Press, Inc. v. NLRB, 742 F.2d 1087 (7th Cir. 1984) (agency deference to precedents in unit determinations)