Wyatt Employment Law Report

NLRB Contemplates Major Change in Elections at Long-Term Care Facilities

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By George Miller

On December 22, 2010, the National Labor Relations Board issued a news release inviting interested parties to file briefs on the issue of the appropriate composition of bargaining units in long-term care facilities.  The briefs would be filed in a pending election case in Mobile, Alabama in which the United Steelworkers petitioned for an election to represent certified nursing assistants at a nursing home in Mobile.  The employer in that case, Specialty Healthcare and Rehabilitation Center of Mobile, contends that, under current Board law, the unit must include all nonprofessional service and maintenance employees, such as dietary aides, cooks, and clerks. The NLRB Regional Director found the unit requested by the union was appropriate, and the employer has appealed that decision to the Board.
In explaining this decision, the news release says that in 1989, the Board promulgated a rule specifying appropriate bargaining units in the healthcare industry. The final rule was limited to acute care facilities. The Board said that it would continue to determine if proposed units were appropriate in nursing homes and other non-acute care facilities “by adjudication.” In 1991, the Board decided the case of Park Manor Care Center, indicating that in non-acute healthcare facilities it would “take a broader approach utilizing not only ‘community of interests’ factors but also background information gathered during rulemaking and prior precedent.” In Park Manor, the Board said that it expected “that after various units have been litigated in a number of individual facilities, and after records have been developed and a number of cases decided from these records, certain recurring factual patterns will emerge and illustrate which units are typically appropriate.’’

The news release goes on to say that in seeking briefs in the current case, the Board majority observed that the long-term care industry has changed dramatically in the two decades since Park Manor was decided. Employment growth in the sector has been strong and, during the last decade, nearly 3,000 petitions for representation elections have been filed involving that industry  The invitation to file briefs specifically asks eight questions, including what the interested parties’ experience has been under the Park Manor decision and whether its application has hindered or encouraged employee choice and collective bargaining. The full invitation detailing the questions, as well as any briefs that are submitted, will be posted on the Agency’s website, www.nlrb.gov.

Finally, the news release mentions that Board Member Brian Hayes (a Republican) dissented from this decision to invite briefs on the issue, saying that there is little evidence that current policies are problematic and that changing them could lead to a proliferation of units in the health care industry. He also criticized the majority for inviting briefs addressing the standard for unit determinations in other industries. Doing so, in his view, tests the limits of Board authority to make law on a case-by-case basis, rather than by rulemaking, and indicates that the majority is “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction—a test that has stood for at least 50 years.” Member Hayes concluded that this review poses the risk of contravening “our own Act, express Congressional intent, the experience informing our health care rules, and the Administrative Procedures Act.”

If the Board were to determine that pre-designated bargaining units would be appropriate in long-term care facilities, one effect would likely be quicker elections, which would be advantageous to unions.  Consequently, it would behoove employers in the long-term care business to pay close attention to this issue and, either individually or through industry groups, file briefs on the issue. 

Coupled with the Board’s December 22nd promulgation of a proposed rule requiring covered employers to post notices at work about the rights of employees under the National Labor Relations Act (see post by Ed Hopson in this blog), the Board’s action in this nursing home case signals that the new Democrat majority on the Board is wasting no time in charting a pro-labor course.

Author: Kim Koratsky

Labor & employment lawyer with the Memphis, Tennessee office of Wyatt, Tarrant & Combs, LLP

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