Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB: Employer denied request to review regional director’s decision overruling objections to union certification, (Jul 23, 2026)

By Ronald Miller, J.D.

The Board found that the employer’s failure to articulate any meaningful arguments with respect to the readily identifiable and/or internal community of interest elements, constituted a failure to timely dispute those elements.

A three-member panel of the NLRB denied an employer’s request for review of a regional director’s decision and direction of elections and the employer’s request for review of the regional director’s decision overruling the employer’s objections and certification of a union as bargaining representative of a single clinic. The Board agreed with the regional director that the employer failed to rebut the single-facility presumption here. The Board emphasized that a single-facility unit in the healthcare industry is presumptively appropriate, and that a party seeking to rebut that presumption must “demonstrate integration so substantial as to negate the separate identity of the single facility” (DVA Renal Healthcare, Inc. dba Davita Vallejo, 375 N.L.R.B. No. 2 (July 22, 2026)).

In denying review of the regional director’s decision, the Board did not rely on the regional director’s finding that employees at different clinics have different skills, functions, and working conditions simply because some clinics offer home dialysis services while other clinics do not. Further, contrary to the regional director, the Board found that the factor of interchange is neutral.

Single-facility presumption. Nonetheless, the Board agreed with the regional director that the employer failed to rebut the single-facility presumption here, for reasons set forth in her decision. The Board emphasized that a single-facility unit in the healthcare industry is presumptively appropriate, and that a party seeking to rebut that presumption must “demonstrate integration so substantial as to negate the separate identity of the single facility.” The employer has not met that burden in the present dispute.

Community of interest. The Board also found that the regional director was not obligated to analyze whether the petitioned-for unit is readily identifiable and shares an internal community of interest under American Steel Construction, Inc., 372 NLRB No.23 (2022).

Here, the employer asserted that the petitioned-for unit was inappropriate because the unit did not encompass all of the clinics in the employer’s ORCA Region 1. The employer’s description of the smallest appropriate unit contained all of the petitioned-for classifications in the original petition at all of the employer’s Region 1 clinics, including some comparable classifications that did not exist at the Vallejo facility. Significantly, the employer’s proposed unit description did not seek to exclude any of the petitioned-for classifications from the smallest appropriate unit.

At the preelection hearing, the employer’s counsel did not identify any petitioned-for classifications that the employer contended must be excluded from the unit or articulate any developed argument as to why the petitioned-for unit is not readily identifiable and/or does not share an internal community of interest.

Further, the employer’s opening and closing statements focused exclusively on the argument that employees at additional facilities must be added to the petitioned-for unit. Thus, the employer did not clearly argue, until its post-hearing brief, that the administrative classifications that the union sought to represent at the Vallejo clinic do not share a community of interest with the medical classifications that the union sought to represent there.

The Board found that the employer’s failure to articulate any meaningful arguments with respect to the readily identifiable and/or internal community of interest elements, either in its Statement of Position or at the pre-election hearing, constituted a failure to timely dispute those elements. The Board observed that it could not fulfill its duty to expeditiously resolve representation cases if the regional director must reopen the record to solicit additional evidence on community-of-interest arguments that were not clearly raised and fully litigated at the preelection hearing.

Record evidence. Further, the Board found that this case is distinguishable from Allen Health Care Services, 332 NLRB 1308 (2000), where the employer refused to take a position on whether the petitioned-for unit was appropriate, and the regional director therefore needed to solicit record evidence to determine the appropriate unit. In this case, the employer did take a specific position on the appropriate unit. Specifically, the employer contended that the unit was inappropriate because it needed to include employees at all of the clinics in ORCA Region 1, and it did not identify any petitioned-for classifications that should be excluded from the petitioned-for unit on community-of-interest grounds.

Allen Health Care does not require regional directors to solicit evidence on unit determination issues that the parties do not actively raise in their Statement of Position and litigate at the pre-election hearing.

The Board also observed that Allen Health Care does not place an evidentiary burden on the petitioning union to prove that the petitioned-for unit is appropriate; it merely confirms that the regional director must be able to rely on “some” record evidence when making a unit determination.

Partial dissent. Member Mayo would grant review in part because, in his view, this election objection raises substantial and material issues best resolved by a hearing. Under the circumstances alleged by the employer in its objection and offer of proof, it would be reasonable for employees to conclude that the Union had videorecorded employees engaged in an antiunion rally at a separate facility without providing them a valid explanation and then posted that video to a group chat that included unit employees, prompting disparaging comments about the rallygoers in the chat. Whether employees reasonably and correctly attributed the posted video to the Union, and if so, whether the resulting circumstances reasonably tended to chill protected activity at the Vallejo clinic or otherwise interfered with employee free choice are matters best resolved by a hearing.

The slip opinion is 375 NLRB No. 2.

Attorneys: Kathryn Cronin (Morgan, Lewis & Bockius) for DVA Renal Healthcare, Inc. dba Davita Vallejo. William Hanley (Weinber, Roger & Rosenfeld) for SEIU, United Healthcare Workers-West.

Companies: DVA Renal Healthcare, Inc. dba Davita Vallejo; SEIU, UNITED Healthcare Workers-West

Cases: Labor OrganizingElections Procedure EvidenceDiscovery AgencyNews