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.