Brian Garrison Speaks With Law360 About NLRB Review of Health Care Bargaining Unit Rules

Labor and employment partner Brian Garrison spoke with Law360 Employment Authority about the National Labor Relations Board (NLRB)’s request for briefs on whether its Health Care Rule should apply when a union seeks to represent workers split between acute and nonacute care facilities.

The article explains that the issue has become increasingly significant as health care industry consolidation has made interconnected hospital systems, outpatient clinics, and ambulatory facilities more common. The NLRB’s call for briefs arose from an election dispute involving whether advanced practice providers working across acute and nonacute facilities should be included in a single bargaining unit.

Garrison said the standard the Board adopts will shape union organizing strategy across health care systems. “Whatever standard the board adopts in this case will certainly shape organizing strategy for how unions approach those health care systems when organizing these advanced practice providers that are at issue in this case and other classifications systemwide,” he said.

Garrison noted that the Board is addressing the Health Care Rule at a pivotal time, as patients are increasingly likely to encounter hospitals and related clinic networks or ambulatory facilities operating side by side. “Interacting with the health care system, you go on-site; it's much more likely that you've got a hospital that's subject to the Health Care Rule and a clinic network or an ambulatory facility that's right next to the hospital,” Garrison said. “So it's likely that unions are going to be organizing employees at both of those locations at one time and not wanting to separate them into different bargaining units.”

Garrison also observed that the issue presents an opportunity for the agency to address a novel question without implicating the Board’s tradition requiring three votes to overturn precedent. The question before the Board is novel, he explained, because the Health Care Rule’s application to mixed acute and nonacute bargaining units has not been squarely resolved.