NLRB Invites Briefs Regarding Composition Of Bargaining Units In Long-Term Care Facilities

On December 22, 2010, the National Labor Relations Board (NLRB) invited interested parties to file briefs on the issue of the appropriate composition of bargaining units in long-term care facilities.  The case under review involves a petition by the United Steelworkers, District 9, to represent certified nursing assistants at a nursing home in Mobile, Alabama.  The Employer has contended that the appropriate unit must include all nonprofessional service and maintenance employees, such as dietary aides, cooks, and clerks.  While the Regional Director found the petitioned for unit to be appropriate, the decision was appealed and is now pending before the NLRB.

In 1989, the NLRB promulgated a final rule regarding appropriate bargaining units in acute care facilities in the health care industry.  The NLRB determined that eight units, or combinations thereof, were appropriate at acute care facilities absent extraordinary circumstances.  In 1991, the NLRB’s rule was upheld by the Supreme Court in American Hospital Assn. v. NLRB, 499 U.S. 606 (1991).  The question of appropriate unit composition presented in this case revisits the subsequent decision in Park Manor Care Center, 305 NLRB 872 (1991) where the NLRB determined 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.”

The NLRB majority is now seeking briefs on the issue of appropriate bargaining units in long-term care facilities reasoning that the long-term care industry has changed dramatically in the two decades since Park Manor was decided.  Specifically, the NLRB noted that the industry has changed in the “face of an aging population, changing customer preferences relating to the form and location of long-term care, and a more general restructuring of the provision of health care, most importantly, a drastic reduction in the average length of stays in acute care hospitals.”  Additionally, the NLRB noted that employment has increased in the long-term care industry and employees have demonstrated an interest in using the statutory process for representation – filing nearly 3,000 petitions for representation elections involving the industry in the past decade.  Member Brian Hayes dissented stating that there is little evidence that current policies are problematic and that changing them could result in a number of different units within the industry.

The invitation to file briefs lists out eight specific questions, including what the interested parties’ experience has been under the Park Manor decision, what factual patterns have emerged illustrating appropriate units in the industry, whether Park Manor’s application has hindered or encouraged employee choice and collective bargaining and whether and/or how Park Manor would apply to the CNA unit at issue in the present case.

Link to full invitation

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