Testing a Union Certification, Two Ways

On June 3 the NLRB penalized two healthcare employers in the same posture: both refused to bargain with a union they didn’t think was lawfully certified. Both lost. But the two cases are a tidy lesson in how this maneuver actually works — and where it can still earn you something.

First, the basics. You can’t directly appeal a union election. If a Regional Director certifies a unit or overrules your election objections, there’s no appeal button. The only path to a court is to refuse to bargain, lose at the Board, and take the Board’s order up on review. Lawyers call it a “technical” 8(a)(5). The Board outcome is a foregone conclusion — it’s a ticket to the courthouse, not a real fight.

Case one: Peak Vista Community Health Centers in Colorado. Its objection was the unit — the Union of American Physicians and Dentists (an AFSCME affiliate) was certified to represent the doctors, NPs, and psychiatric providers, but the unit excluded dentists and hygienists. Peak Vista argued you can’t carve dental out and call the rest appropriate. The Board didn’t bite: the unit was “fully litigated” in the representation case, and you don’t get to re-litigate it without new evidence. Summary judgment for the General Counsel.

Case two: Asante Rogue Regional Medical Center in Oregon. Its objection was union conduct — Asante claimed the Oregon Nurses Association made prohibited speech in the 24-hour window before the vote (a Peerless Plywood violation). It tried to thread the narrow Sub-Zero Freezer exception that lets the Board revisit a certification in “extreme circumstances.” The Board said this wasn’t close — Sub-Zero involved threats and property damage, not a speech timing dispute.

Here’s the part employers should notice. Asante also stonewalled the union’s information requests, telling the union it wouldn’t respond until the NLRB proceeding wrapped. That’s unlawful — information about unit employees’ terms and conditions is presumptively relevant and has to be produced. But Asante won one carve-out: the union’s demand for the hospital’s audited and unaudited financial statements. Per the Board, financials aren’t presumptively relevant, so the union has to show a specific need. That request got remanded.

The technical refusal-to-bargain is legitimate, but it’s a stepping stone, not a victory. The round that actually matters happens earlier — at the unit determination and the election objections, before the ballots ever go out. And while you’re testing certification, keep meeting your other duties. Refusing to hand over presumptively relevant information isn’t a test of anything. It’s just a second violation.

If you think a unit is gerrymandered or an election was tainted, say so during the representation case. Not after.