Regardless of public messaging from Essentia Health, their refusal to begin negotiations with Advanced Practice Providers (APPs) across Northeast Minnesota is both unlawful and unethical. Essentia Health is in clear violation of Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (NLRA) by refusing to recognize and bargain with a certified union representative of its employees.
In November of 2023, Essentia Health’s Advanced Practice Professionals in their East Market region filed for an election to organize with the Minnesota Nurses Association. Initially, Essentia Health objected to the makeup of the bargaining unit under the NLRB’s Healthcare Rule, which delayed the process. Essentia’s objection led to a hearing with the regional NLRB in January and February of 2024, in which the NLRB considered arguments from Essentia Health as to why the Healthcare Rule should apply to this bargaining unit and evidence from MNA as to why this bargaining unit met the NLRB’s long-standing principle that employees in the petitioned-for unit are “readily identifiable as a group” and share a “community of interest.”
After two months of deliberation, the NLRB ruled against Essentia Health and allowed the election to continue. In their ruling, the NLRB cited similarity in employees’ skills, duties and working conditions; centralized control of management and supervision; functional integration of business operations and the conformity of the unit with the Employer’s own administrative grouping as evidence as to why the East Market grouping is not arbitrary and that APPs within the East Market do share a community of interest.
This election was held in July and, during this time, Essentia pledged to respect the APP decision and work with them.
In August 2024, the APPs voted overwhelmingly to unionize, and shortly after, the National Labor Relations Board (NLRB) certified the bargaining unit and election for the APPs, authorizing the start of negotiations with Essentia Health. During the certification, the NLRB explicitly warned Essentia Health that changes to terms and conditions of employment after the date of the election were not allowed and that “an employer acts at its peril in making changes in wages, hours, or other terms and conditions of employment during the period while objections are pending.”
Unfortunately, the NLRB’s has a loophole where employers can unlawfully refuse to bargain and avoid immediate liability while their legal appeals are pending. But this delay tactic carries significant risk for both patients and the Essentia system as a whole. If Essentia Health continues its unlawful refusal to negotiate, the consequences could be substantial, including financial liability for back pay to impacted APPs and additional penalties, dating back to their original refusal to bargain. Thus, Essentia Health’s continued refusal to engage in bargaining not only threatens the livelihoods of its APPs — it jeopardizes the overall stability and integrity of the entire Essentia system.
Essentia Health, however, has not heeded this warning and, despite initially cooperating by providing the necessary information to make the election possible, the organization has since reversed course—ceasing communication with MNA and initiating a new legal appeal. During this delay, Essentia is also erroneously claiming that they cannot bargain with the APP’s while awaiting the results of the national appeal ruling. This, however, is incorrect.
In all, Essentia’s first appeal caused a 6-month delay in the process. Their current appeal has caused an additional year long delay. Given the current transitions within and defunding of the National Labor Relations Board, an additional delay could take years.
“After eighteen months of waiting for Essentia Health to do right by patients and caregivers, we’ve reached our limit.” said Sara McCumber, an APP from Duluth. “Their relentless stalling makes one thing unmistakably clear: Essentia isn’t interested in solutions—only in union-busting.”
Unfortunately, the NLRB’s procedure contains a loophole where employers can unlawfully refuse to bargain and avoid immediate liability while their legal appeals are pending. But this delay tactic carries significant risk for both patients and the Essentia system as a whole. If Essentia Health its unlawful refusal to negotiate, the consequences could be substantial—including financial liability for back pay to impacted APPs and additional penalties, dating back to their original refusal to bargain. Thus, Essentia Health’s continued refusal to engage in bargaining not only threatens the livelihoods of its APPs — it jeopardizes the overall stability and integrity of the entire Essentia system.
Recent NLRB cases, such as Pathway Vet Alliance, LLC (d/b/a Thrive Pet Healthcare), highlight the inadequacy of the current remedy, which allows employers to blatantly violate the law but not face any consequences until months, or even years, of appeals have played out.
The NLRB’s former General counsel has acknowledged that this process “incentivizes violations of the Act”. Essentia is not following the law; they are taking advantage of this perverse “act now, pay later” incentive, hoping that the APPs Union campaign will lose energy during their lengthy appeals.
Sources
Decision and Direction of Election – Essentia Health (NLRB, Case 18-RC-330714)