NLRB proposal to alter non-acute care unions sparks outcry

WASHINGTON – A proposal by the National Labor Relations Board to change how workers in non-acute care facilities unionize could raise costs and impact the quality of care at such facilities, according to the American Health Care Association and National Center for Assisted Living.

"If you have unions come into the facility (creating) seven to eight bargaining units instead of one or two, it will take additional time and legal fees," said Dianne De La Mare, the AHCA's vice president of regulatory services.

"The NLRB is trying to put a square head into a round hole," added Greg Crist, the AHCA's vice president of public affairs, which could lead to long-term care facilities being reluctant to hire if they have to divert money to pay for additional expenses, such as attorney's fees.

Since 1991, the NLRB has been using "community of interests" factors to determine the composition of bargaining units at facilities such as nursing homes. A recent case brought before the board, however, has caused current members to take a look at how bargaining units at non-acute care facilities are determined.

United Steelworkers District 9,petitioned for an election to represent certified nursing assistants at a nursing home in Mobile, Ala. The nursing home company, Specialty Healthcare and Rehabilitation of Mobile, said the unit should be made up of not just CNAs but all nonprofessional service and maintenance employees, such as activity assistants, dietary aides and cooks, the central supply clerk and others.

The labor board's regional director sided with United Steelworkers, finding a bargaining unit of only CNAs was appropriate. Specialty Healthcare and Rehabilitation of Mobile appealed the decision.

In reviewing the appeal, the NLRB decided to seek opinions from interested parties, saying input is needed because the long-term care industry has changed significantly since 1991 and that it is the board's duty under the National Labor Relations Act to "continually evaluate whether its decisions and rules are serving their statutory purpose."

"We strongly believe that asking all interested parties to provide us with information and arguments concerning the question of statutory construction raised in this case is the fairest and soundest method of deciding whether our rules should remain the same or be changed and, if the latter, what the new rules should be," said the board.

One member of the board, Brian Hayes, dissented, saying he found "no reasons at all to reconsider our unit determination policies" and there were more "sound reasons not to," including "the risk that we may contravene our own Act, express Congressional intent, the experience informing our health care unit rules and the Administrative Procedures Act."

On Dec. 22, 2010, the NLRB issued an invitation to interested parties to submit briefs about the appropriate composition of bargaining units at long-term care facilities. A firestorm has ensued, resulting in a Congressional hearing, "Emerging Trends at the National Labor Relations Board," by the Health, Employment, Labor and Pensions subcommittee, which was held on February 11.

The subcommittee chairman, Phil Roe, MD, (R-Tenn.) said at the hearing: "The board serves as a quasi-judicial body. Its five members are chosen by the president, and the majority of members share the president's views on labor policy. As a result, the board has generated a lot of debate over the years. However, that debate has recently been elevated to new heights since the board abandoned its traditional sense of fairness and neutrality and instead embraced a far more activist approach."

In response to the hearing, the NLRB's chairperson, Wilma Liebman, issued a statement that said, in part, "The most significant 'emerging trend' at the NLRB is that the agency is coming back to life after a long period of dormancy. After more than two years without a quorum due to chronic vacancies, the board now has four members and has been tackling many of the difficult cases that languished for years."

The board had made no decisions or changes by the time Healthcare Finance News went to print.