A case to decide whether a nursing home could make pay and staffing decisions during the COVID-19 health emergency without input from its workers’ union entered a new stage Thursday.
The case, now being weighed by judges at the US Court of Appeals for the Sixth Circuit, is being watched nationally. It is the latest example of litigation over emergency measures taken by nursing homes during the pandemic’s earliest, frantic days. The court’s eventual decision will clarify how providers may handle emergency decisions made without union bargaining in the future.
When the pandemic first hit Fountain Bleu Health and Rehabilitation Center in Livonia, MI, in spring 2020, the provider was immediately faced with a staffing crisis.
With a COVID outbreak among its residents and as many as 70% of its staff staying home from work by April, the facility temporarily hired non-union workers and raised pay by $2 per hour.
Those workers were non-certified nurse aides, according to National Labor Relations Board documents — and allowed to do the work of the usual, unionized certified nursing assistants due to a federal emergency waiver.
The union argues that all of these decisions were made unilaterally and that they were not informed of the changes following their implementation or at a June 10, 2020, bargaining session.
Within a week of that bargaining session, no Fountain Bleu residents were testing positive for COVID. At that point, wages were brought back down to their original level.
According to the NLRB documents, the union at the time had not been informed of the initial wage increase, nor the return to pre-pandemic levels nor the hiring of non-union workers.
The NLRB ruled against Fountain Bleu in December 2022 — writing that while the facility did have the right to the initial emergency hiring and wage increases, it had improperly expanded that leeway by not informing the union after the initial emergency and leading up to the June meeting.
The board ordered the provider to remedially reinstate the $2 raise.
In oral arguments Thursday, a lawyer for Fountain Bleu told the Sixth Circuit panel that it was always clear that the emergency would last until the building was COVID-free, as it apparently became in mid-June of 2020.
“This was a very unique situation,” said Grant Pecor, partner at Barnes & Thornburg, which represents the provider. “The employer took actions that were justified, which the board actually confirmed, and they were temporary actions designed to address immediate emergency circumstances.”
In its ruling, the NLRB maintained that the provider failed to properly notify the union of the relevant changes and instead “took action based on its own determination that the emergency had ended.”
