07/16/2026: Board Solicits Briefs on Application of Health Care Rule
What to do with a multi-facility unit of acute and non-acute facilities?
Essentia Health, 374 NLRB No. 140, 18-RC-330714 (Published Board Decision)
The Board granted the Employer's request for review of a Regional Director's decision finding an appropriate bargaining unit of nurse practitioners, physician assistants, certified nurse midwives, and clinical nurse specialists, collectively called Advanced Practice Providers, across nine acute-care hospitals and 51 non-acute clinics operated by Essentia Health in its East Market division.
The Employer had raised two separate challenges to the petitioned-for unit. One concerned the unit's composition, arguing that because the unit spans acute-care hospitals, the Board's Health Care Rule requires that all professional employees, not just Advanced Practice Providers, be included. The other concerned the unit's scope, arguing that the 13 geographic submarkets making up the East Market division should each be treated separately rather than combined into a single unit.
The Regional Director had rejected both arguments, finding that the Health Care Rule did not apply and instead applying the test from American Steel Construction to conclude the composition was appropriate, and applying the Board's traditional multifacility test, drawn from cases like Exemplar and Stormont-Vail Healthcare, to find that the petitioned-for locations shared a community of interest.
The Board majority, Chairman Murphy and Members Prouty and Mayer, granted review specifically on the composition question, framing it as whether the Health Care Rule governs unit composition when a petitioned-for multi-facility unit combines acute-care and non-acute facilities, and if not, what standard should apply instead. The majority clarified that the Health Care Rule addresses only which classifications belong in a unit, not which locations may be combined, so it does not bear on whether acute-care and non-acute facilities can be grouped together, a question instead governed by ordinary multifacility community-of-interest precedent. The Board specified that its grant of review does not reach whether American Steel Construction itself was correctly decided. The Board invited briefs from the parties and interested amici on these questions, with initial briefs due July 29, 2026 and responsive briefs from the parties due August 12, 2026.
Member Prouty dissented in part, arguing that the Employer had not shown the compelling reasons required under the Board's rules to grant review, particularly since employees had already voted for representation and a Certification of Representative had issued, so further proceedings would only prolong uncertainty over their bargaining representative. Prouty nonetheless joined in soliciting briefing on the composition issue given the majority's decision to grant review.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the current Board standard for determining whether a petitioned-for bargaining unit is appropriate.
Exemplar, 363 NLRB 1500 (2016): Applied the Board's multifacility test to assess whether employees at different locations share a community of interest sufficient to be combined in one unit.
Stormont-Vail Healthcare, 340 NLRB 1205 (2003): Applied the Board's multifacility community-of-interest test in the healthcare setting to determine appropriate unit scope.