Lareau on Specialty Healthcare: NLRB Overrules Standard for Appropriate Unit Determinations in Nonacute Care Sector of Healthcare Industry, Enunciates New Standard for Unit Determinations Generally

Excerpt:

In Specialty Healthcare and Rehabilitation Center of Mobile, the National Labor Relations Board, as expected, overruled the standard for appropriate unit determinations in the nonacute care sector of the healthcare industry. In the process, it also, as some had predicted, enunciated a new standard for unit determinations generally. In this Emerging Issue Analysis, N. Peter Lareau, author of "NLRA: Law and Practice" and numerous other books and articles in the field of labor law, analyzes the case in considerable detail. He concludes that the decision to overrule the standard will ultimately be upheld, but that the new standard for unit determinations presents problems unlikely to be resolved in the near future.

Background

For a number of years after the passage of the Act, the primary labor law issue for healthcare institutions was whether the Board had jurisdiction over nonprofit hospitals. In 1943, the Board asserted jurisdiction over a nonprofit hospital in the District of Columbia. Congress effectively undercut the impact of that decision when it adopted the 1947 Amendments to the Act, expressly exempting nonprofit hospitals from the Act's coverage. In 1974, however, Congress reversed itself, adopting controversial amendments to the Act that removed the exemption.

Once nonprofit hospitals fell under the Board's jurisdiction, the legal focus switched from the basic issue of coverage to issues regarding the appropriateness of bargaining units. In large part the appropriate unit issues sprang from the legislative history of the 1974 amendments, which, in both the Senate and the House, reflected Congressional intent that the Board guard against proliferation of bargaining units in the healthcare field. Implementing that intent proved to be difficult; the Board's unit determinations generated considerable litigation. Because the Board's customary case-by-case approach was unsuccessful in articulating an acceptable approach to unit determinations in the health care field, the Board adopted a different method in 1987 - unit determination through the rulemaking process.

The Board announced its intention to engage in rulemaking in St. Vincent Hospital and issued a proposed rule on July 2, 1987. After numerous hearings to gather empirical data regarding the health care industry, and a second notice of proposed rulemaking in 1988, the Board issued its final rule on April 29, 1989. The Supreme Court upheld that rule in American Hospital Association v. NLRB [an enhanced version of this opinion is available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] .

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