In a decision instructive to employers facing sudden, emergency conditions requiring immediate response, a divided National Labor Relations Board (NLRB) in Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., 372 NLRB No. 37 (December 28, 2022), expanded an employer’s obligation to bargain with a union in the aftermath of exigent circumstances. The Board majority determined that an employer must bargain over both the decision and its effects once the emergency passes.
Fountain Bleu Health and Rehabilitation Center, Inc., owned and operated a 108-bed nursing home in Livonia, Michigan. Following the company’s purchase of the facility in October 2018, it voluntarily recognized the union as the collective-bargaining representative for two bargaining units of employees: in one unit, licensed practical nurses; in the other unit, certified nursing assistants (CNAs) and other support staff.
By the end of March 2020, the facility was severely impacted by the COVID-19 pandemic with approximately 60–75 percent of staff refusing to report to work. In response to the personnel crisis, in the first week of April, management unilaterally implemented a $2-per-hour facility-wide pay raise. When the company’s chief operating officer announced the increase in pay rates, he stated that it would remain in place as long as COVID-19 patients were in the building. Additionally, the company relied on a federal emergency waiver of licensing requirements for...
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