A Michigan nursing home did not violate federal law by not bargaining with unionized employees when it increased hourly pay during the pandemic and hired non-union workers, a federal appeals court has ruled.
The US Court of Appeals for the 6th Circuit overturned a ruling from the National Labor Relations Board that had gone against Fountain Bleu Health and Rehabilitation Center. The appeals court said the NLRB was wrong to order the facility to bargain with union employees over a $2 per hour pay increase during the pandemic while staff were caring for COVID-positive residents.
The case has been one of several closely watched at the national level for how courts judge long-term care facilities that changed operations during the declared public health emergency.
Fountain Bleu “facing staff shortages, took emergency measures to keep its residents safe,” the appeals court wrote in its ruling, which was issued Thursday.
After a COVID outbreak at the facility early in the pandemic, approximately 75% of Fountain Bleu’s unionized workforce — licensed practical workers and certified nurse aides — stopped reporting for shifts. The facility responded by hiring non-union labor and raising wages by $2 per hour for those treating COVID patients. The court’s ruling said that notice of the pay raise and the number of COVID cases among residents was posted next to a time clock.
From April 9 through Nov. 2, 2020, the facility used a federal waiver to hire non-union, non-certified nurse aides to replace CNAs who weren’t reporting to work, the court’s ruling said. The last day the nursing home recorded a COVID-positive resident was June 11, 2020, and the pay hike was suspended at the end of that pay period on June 16.
While the NLRB acknowledged the facility’s ability to use the waiver, its December 2022 ruling said the owners — Metro Man IV, LLC — improperly expanded that leeway by not informing the union after the initial emergency and leading up to a June 10, 2020, contract bargaining session.
The appeals court did grant the NLRB a partial win in ruling that Fountain Bleu’s management failed to engage in bargaining with SEIU Healthcare Michigan, which represents the unionized employees, about the effects of its decision to hire non-union workers.
McKnight’s Long-Term Care News reached out to Fountain Bleu for comment, but the facility did not respond.
