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NLRB Overturns Precedent, Adopts New, Pro-Union Approach in Non-Acute Health Care Facilities

In a decision made public on August 31, Specialty Healthcare and Rehabilitation Center of Mobile, the National Labor Relations Board overturned longstanding precedent to adopt a new, pro-union approach for determining what constitutes an appropriate bargaining unit in non-acute health care facilities, such as nursing homes and rehabilitation centers.

Since 1991, the NLRB has followed the approach it established in Park Manor Care Center, whereby it adopted a “practical” or “empirical” community-of-interest test in determining the appropriate composition of a bargaining unit in non-acute health care facilities that considers the type of unit sought and the type of facility involved.  This approach is different than the standard approach to bargaining units, which considers only whether the proposed unit is an appropriate unit based a commonality of interests among unit members.  The practical approach articulated in Park Manor reflected the Board’s general principle within the health care industry of striking a balance between units that are too large, making union organizing difficult, and those that are too small, creating the potential for repetitious bargaining and/or frequent strikes.

In one of the last decisions issued by outgoing Board Chairman Wilma Liebman, a majority of the Board found that “the Park Manor approach to determining if a proposed bargaining unit in a nursing home is an appropriate unit has become obsolete, is not consistent with [the Board’s] statutory charge, and has not provided clear guidance to interested parties or the Board.”  Going forward, then, employees at non-acute health care facilities will be subject to the same general “community-of-interest” standard that the Board has applies at workplaces in other industries.

In a strongly worded dissent, Member Brian Hayes stated that he would adhere to Park Manor, “which established a balanced legal standard maintained in non-acute care health care unit cases without controversy for 20 years (and without any objection from the party seeking review in this case).”

This decision represents a dramatic shift for the Board, and one with the potential to significantly decrease the ability of non-acute health care facilities to challenge the composition of a petitioned-for bargaining unit.  The decision also increases the potential for highly fragmented bargaining units and small units that could make it easier for a union to gain a toehold in a facility.

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Martha Zackin