In a 3-to-1 decision, the National Labor Relations Board overruled a decision made 20 years ago that set the standard for determining how bargaining units were formed at non-acute care facilities. Opponents have warned that if the NLRB changed the way units are determined at non-acute care facilities like nursing homes, costs will increase and quality of care may suffer.
The approach set with the 1991 Park Manor decision “has become obsolete, is not consistent with our statutory charge, and has not provided clear guidance to interested parties or to the Board,” said the majority in the decision. “We are persuaded that it is no longer sound policy to focus on a rulemaking record created over two decades ago concerning a highly dynamic industry and on cases decided even earlier.”
The Park Manor approach has been based on pragmatic or empirical community of interests. The NLRB decision said that the majority members didn’t see how the pragmatic approach differed “meaningfully” from the board’s traditional community-of-interest approach, which “is intended, as the (National Labor Relations Act) requires, to assure employees the ‘fullest freedom in exercising the rights guaranteed by th[e] Act,’ … rather than to satisfy an abstract notion of the most appropriate unit, and is thus pragmatic.”
Calling the majority’s decision “the culmination of an ill-considered journey,” dissenting member Brian Hayes said that the majority “seized on this opportunity to solicit comment on questions ranging far beyond the issue actually presented in this case.”
The original case was appealed to the NLRB when an employer, Specialty Healthcare and Rehabilitation of Mobile, disagreed with the labor board’s regional director’s decision over the creation of a unit of certified nursing assistants. United Steelworkers, District 9, had requested the CNAs be its own unit but Specialty Healthcare said the unit should also be made up of nonprofessional service and maintenance employees. The regional labor board director sided with United Steelworkers.
When the NLRB received the case, the majority said it wanted to seek input because the long-term care industry has changed since the 1991 Park Manor decision and it felt it was the board’s duty to continually evaluate decisions and rules. (Hayes dissented from the notice and invitation to file briefs because he felt the board was seeking to go beyond the issue presented in the case.)
Members of the non-acute care facility community objected, saying that the possible changes to the way units are created would cause havoc that could result in increased costs due to legal fees and a reluctance to hire, which would be detrimental to elderly and disabled patients in an industry with a historically high employee turnover rate.
“From the start, this seemed to be a solution looking for a problem,” said Greg Crist, the American Health Care Association’s vice president of public affairs. “No party in the dispute raised this issue, but the Board used this case to legislate from a political perch. What has changed in the workplace that we needed to end decades of effective policy? At a time when our sector is one of the few bright spots in an otherwise cloudy economy, the Board should be helping our workers continue to deliver quality healthcare, not disrupting.”
The NLRB’s decision to overturn the Park Manor approach to determining how units are formed means that it has sided with United Steelworkers, agreeing that the CNAs can be their own unit. The NLRB has remanded the case to the regional director for further action.
Follow HFN associate editor Stephanie Bouchard on Twitter @SBouchardHFN.