Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB: Board grants review of unit appropriateness finding for ‘Advanced Practice Providers’, (Jul 21, 2026)

By Ronald Miller, J.D.

The employer argued that the petitioned-for unit was underinclusive because it did not include “all professional employees” at the petitioned-for locations.

A divided three-member panel of the NLRA granted an employer’s petition for review of a regional director’s order finding that a bargaining unit of “Advanced Practice Providers” constituted an appropriate unit for collective bargaining. The Board’s grant of review concerned what classifications must be included in a hybrid unit where some of the facilities fall under the Health Care Rule and others do not. Member Prouty filed a separate opinion dissenting in part (Essentia Health, 374 N.L.R.B. No. 140 (July 15, 2026)).

Petitioned-for unit. On November 27, 2023, a nurses association filed a petition seeking to represent a unit of nurse practitioners, physician assistants, certified nurse midwives, and clinical nurse specialists (Advanced Practice Providers (APPs)) employed by a healthcare system. The petitioned-for unit includes approximately 400 petitioned-for employees across nine acute-care hospitals and roughly 51 non-acute clinics.

Geographic scope. The employer contended that the petitioned-for unit is not appropriate on two grounds. First, the employer argued that, because the petitioned-for unit covers nine acute-care hospitals, the petitioned-for unit is underinclusive and the only appropriate unit must include “all professional employees” (and not just the APPs) at the petitioned-for locations. Second, the employer argued that a unit containing all the employer’s locations in its East Market division was too broad. Instead, the employer asserted that the unit must be subdivided to reflect the 13 geographic regions (or submarkets) that combine to form the East Market division.

Regional director’s decision. On June 11, 2023, the regional director issued her decision and direction of election, concluding that the petitioned-for unit is appropriate. As to the employer’s unit composition argument, the regional director found that the Health Care Rule does not apply in this case, and accordingly applied the test set forth in American Steel Construction, Inc., 372 NLRB No. 23 (2022), to determine whether the petitioned-for unit was appropriate.

With respect to the employer’s unit scope argument, the regional director applied the Board’s multifacility test, to conclude that the petitioned-for locations shared a community of interest. Thus, the regional director found that the petitioned-for unit was appropriate, both in terms of its composition and its scope.

Request for review. The Board granted the employer’s request for review of the regional director’s decision, finding that it raised substantial issues warranting review, especially with respect to the regional director’s conclusion that the Board’s Health Care Rule did not apply in this case.

Health Care Rule. The Board noted that the Health Care Rule is a rule of unit composition and does not concern whether certain locations may or must be included in a petitioned-for unit. Accordingly, the Health Care Rule does not govern whether acute-care hospitals may be included in the same unit as nonacute-care facilities. Rather, the Board would apply its traditional multi-facility precedent to ascertain whether the acute-care and nonacute-care facilities share a community of interest.

The Board’s grant of review concerns what classifications must be included in a hybrid unit where some of the facilities fall under the Health Care Rule and others do not.

Dissent in part. Member Prouty would deny the employer’s petition for review of the regional director’s decision and direction of election. The dissent argued that the employer had not shown compelling reasons in this case to grant review. He observed that in the representation election, employees voted overwhelmingly to be represented by the union. Prouty argued that there was thus no need to use this case as a vehicle for examining the contours of the Board’s Health Care Rule, thereby prolonging indefinitely employee uncertainty about their bargaining representative.

The slip opinion is 374 NLRB No. 140.

Attorneys: Thomas Trachsel (Felhaber Larson) for Essentia Health. Jon Haines (Cummins & Cummins) for Minnesota Nurses Association.

Companies: Essentia Health; Minnesota Nurses Association

Cases: Labor OrganizingElections Procedure AgencyNews