Northern Montana Health Care Center v. National Labor Relations Board

At midnight between August 30 and 31, 1994, ownership of a unionized long-term nursing care facility changed over from the Lutheran Home of the Good Shepherd (“Lutheran Home”) to the Northern Montana Care Center (“Care Center”), a corporate subsidiary of Northern Montana Health Care, Inc. (NMHCI). 1 This transition was accomplished without any shutdown of operations or removal of patients. However, the minimal disruption of services was accompanied by a total disruption of the collective bargaining situation.

Before the transition in ownership, the facility had employed 157 employees, 74 of whom were in job classifications that were part of the established bargaining unit. Prior to August 30, the Care Center conducted a hiring process in which employees had to reapply for their positions. By the time of the transition, 54 of the 76 positions that were part of the bargaining unit were filled by Union members.

On September 2, 1994, the United Food and Commercial Workers Union Local No. 8 (“Union”) sent the Care Center a demand for recognition of the bargaining unit that had been in place at the facility. On September 12, 1994, the Care Center responded, asserting its good faith…

concurring in part and dissenting in part:

I concur in all of the majority opinion except for the determination that licensed practical nurses are not supervisors. The duties of licensed practical nurses in a long-term care nursing home, such as the Northern Montana Health Care Center, differ markedly from those in an acute care facility, such as the one involved in Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.1997). The evidence in this case demonstrated that, as the Administrative Law Judge concluded after conducting a thorough hearing. Substantial evidence supports this finding. Thus, I agree with the assessment by the Administrative Law Judge that licensed practical nurses should not form part of the bargaining unit pursuant to National Labor Relations Board v. Health Care and Retirement Corporation of America, 511 U.S. 571, 573-74 , 114 S.Ct. 1778 , 128 L.Ed.2d 586 (1994).

Nonetheless, because the number of employees involved was insubstantial, the employer was not relieved of its responsibility to bargain with the unit. See David Wol-cott Kendall Memorial School v. NLRB, 866 F.2d 157, 161-62 (6th Cir.1989). The application of the insubstantial variance…