Unionized healthcare employers may be interested in a recent post on the Jackson Lewis LLP Unions & Labor Law Reform Blog addressing union information requests in the hospital setting. Click here for more information.
The National Labor Relations Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), in which the U.S. Court of Appeals for the District of Columbia Circuit held that the President’s January 4, 2012 recess appointments of three members to the Board were invalid. Instead, the Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the U.S. Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.
Currently, Chairman Mark Gaston Pearce is the only member of the Board whose appointment is valid under the reasoning of Noel Canning. Confirmed by the Senate on June 22, 2010, he serves a term ending on August 27, 2013.
If the U.S. Supreme Court accepts the case, oral argument likely will be scheduled sometime during the Supreme Court’s term that begins in October 2013. Until the Supreme Court issues an opinion, the current uncertainty remains, and cases, rulemaking and appointments made by the Board since August 2011 may be subject to legal challenge.
Home health aides who deceived their employer about their intention to strike created a reasonably foreseeable risk of imminent danger to their patients and were not entitled to be reinstated to their original patients and schedules after they were given new assignments following the strike, the U.S. Court of Appeals for the Second Circuit has ruled. NLRB v. Special Touch Home Care Servs., Inc., No. 11-3147-ag (2d Cir. Feb. 27, 2013). For details, click here.
SEIU Opposition to Mandatory Flu Shots for Healthcare Workers Adds Challenge to Vaccination Programs
A resolution adopted by the Nurse Alliance Leadership Council of SEIU Healthcare opposing mandatory flu vaccine and masking policies may add another challenge to healthcare employers seeking to implement such requirements. Other unions representing healthcare workers have taken similar positions. This opposition from labor unions is at odds with the efforts of regulators in many states to increase the percentage of healthcare workers who receive the flu vaccine. For example, in Massachusetts, the Department of Public Health set a 90% flu vaccination coverage rate as the target for acute care hospitals during the 2012-2013 flu season.
The SEIU has also filed a lawsuit in federal court challenging the state of Rhode Island’s requirement that healthcare workers be vaccinated. (While many states require hospitals to offer flu vaccines to their employees, only Rhode Island requires that healthcare workers be vaccinated.)
Mandatory flu vaccination and masking programs have also been the subject of recent litigation regarding religious accommodations and employer bargaining obligations under the National Labor Relations Act. In addition, the EEOC has recently weighed in on employers' rights to make reasonable inquiries about an employee's religious beliefs when the employee objects to the vaccination on religious grounds. These programs can also raise accommodation issues under state and federal disability discrimination laws. The SEIU’s opposition to mandatory flu vaccination and masking programs for healthcare workers is one more issue for employers to address when developing these programs.
Despite the yet-unanswered question of the validity of NLRB rulings since President Obama’s “Recess Appointments” in January 2012, healthcare employers should be aware of several recent decisions that will affect the industry.
In Alan Ritchey, the Board held for the first time that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may no longer unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline. Employers may still impose discipline without first bargaining where an employee’s continued presence threatens safety, health, or security, for example in cases of patient abuse or disclosure of HIPAA-protected materials.
For more, see http://www.jacksonlewis.com/resources.php?NewsID=4320.
In Piedmont Gardens, the Board considered whether written statements by two charge nurses and a CNA who witnessed alleged misconduct by another CNA at a continuing-care facility were subject to disclosure to the union,. Long-standing precedent held that employee-witness statements were automatically exempt from disclosure to the union. In Piedmont, the Board announced it would now apply a balancing test and weigh the union’s need for the information against any legitimate and substantial confidentiality interest established by the employer, thereby eliminating any special protection for employee-witness statements. Ultimately, the Board found one charge nurse’s statement subject to disclosure because it was not provided under an assurance of confidentiality. Employers should be sure to provide assurances of confidentiality to witnesses prior to asking them to provide statements and document specific concerns about the employer’s inability to obtain witness statements in the future if disclosure takes place.
For more, see http://www.jacksonlewis.com/resources.php?NewsID=4347.
Employers should not expect the NLRB to slow down in light of the Recess Appointment question. Board Chairman Mark Pearce stated that the Board “respectfully” disagreed with the decision and that the agency will continue to issue decisions. We would expect to see more of the same from the NLRB.
Ruling in Noel Canning Leaves Unanswered Questions For Internal Investigations In Healthcare Industry
The U.S. Court of Appeals for the District of Columbia Circuit has ruled in Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), that President Obama’s “Recess Appointments” of three new NLRB members in January 2012 were unconstitutional and, as a result, the Board lacked any constitutional authority to act since that time. For details of that decision, click here.
Noel Canning will likely be appealed to the U.S. Supreme Court. However, for those Board rulings that have been issued since January 4, 2012, like Banner Health System d/b/a Banner Estrella Med. Ctr., 358 NLRB 93 (July 30, 2012), there is a strong argument that they are similarly invalid. In Banner Health System, the Board ruled an Arizona hospital violated the NLRA when its human resources consultant asked employees interviewed in connection with an internal investigation not to discuss the matter with co-workers while the investigation was ongoing. The Board found that the employer’s “generalized concern” regarding the need to protect the integrity of its investigation was insufficient to outweigh employees’ Section 7 rights. Instead, the Board explained it was “the [employer’s] burden to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” The Board then determined that, in applying a “blanket approach” to maintaining confidentiality with respect to the internal investigation, the employer did not meet the requirement of evaluating whether an actual threat to the integrity of the investigation existed to justify the need for such confidentiality.
Check back for additional postings on the status of Noel Canning, Banner Health System and best practices for handling internal investigations in the healthcare industry. Employers seeking to raise a Noel Canning defense to existing unfair labor practice charges should carefully review the issue with legal counsel.
Those with staff and workplaces impacted by Hurricane Sandy may wish to take a look at an article by Jackson Lewis attorneys posted on SHRM-LI’s website which identifies and summarizes employer obligations in the aftermath of a natural disaster available at the following link: http://shrmli.org/jl-legal-updates/.
On December 23, the National Labor Relations Board (“NLRB”) announced that it was postponing the effective date of its employee rights notice-posting rule from January 31 to April 30. This is the second postponement of the rule which was initially to go into effect on November 14, 2010. Several employer groups have filed lawsuits challenging the authority of the Board to require a poster and impose penalties for non-compliance. The Board stated that it was postponing the effective date “at the request of the federal court in Washington, DC hearing a challenge regarding the rule.”
Keep reading this blog for updates, or feel free to contact us for more details.
The National Labor Relations Board (NLRB) has voted 2-to-1 to approve Chairman Mark Pearce’s resolution to adopt a limited number of amendments to the NLRB election process. According to the agency, the modified elections rules are intended to reduce “unnecessary pre-election litigation.”
The six amendments grant the NLRB and its hearing officers significant latitude in deciding election issues. They also substantially limit an employer’s ability to appeal significant pre-election and post-election issues.
Chairman Pearce and Member Craig Becker supported the amendments. Member Brian Hayes was against them.
It appears that the NLRB will publish a final rule, based on the modifications, and the Board will hold an official vote for formal adoption. As the Board will lose its “quorum” when Member Becker’s term expires at the end of this calendar year, this vote must occur on or before December 31st.
Since health care employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever to consider a comprehensive preventive labor relations program. We recommend that the program include potential elements such as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law when having such discussions and/or during union organizing, (3) bargaining unit analyses (for example to determine who is a supervisor), and (4) legal analysis and client development of best HR practices consistent with changes in the law (such as the NLRB’s initiative relating to protected concerted activity).
The NLRB has upheld a hospital’s ban on the use of cameras for photographing patients, equipment, property or facilities. It said the ban did not violate the right of employees to engage in union or protected concerted activity. The NLRB in the 2-1 decision reasoned that the ban did not expressly restrict union or other protected, concerted activity and there was no evidence that it was adopted in response to or applied to such activity. Further, the Labor Board acknowledged the hospital’s “weighty” interest in protecting patient privacy and preventing the wrongful disclosure of individually identifiable health information. It concluded that employees would see the policy as a way to protected patient privacy and not as an attempt to prevent union activity.
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Where a policy could be interpreted as an infringement on union or other protected, concerted activity claims, employers should incorporate within it a statement of the legitimate and substantial business reasons for adopting it. This will minimize the chance that a union or an employee will be able to reasonably interpret its purpose as unlawful.
NEW NLRB STANDARD TO PERMIT SINGLE JOB CLASSIFICATION BARGAINING ("VOTING") UNITS IN NON-ACUTE CARE HEALTHCARE FACILITIES
On August 30 the National Labor Relations Board (NLRB) issued the long-awaited decision in Specialty Healthcare & Rehabilitation Center of Mobile, in which it announced a new standard for determining what constitutes an appropriate bargaining unit in non-acute health care facilities.
The union in Specialty Healthcare sought to represent a unit consisting only of Certified Nursing Assistants (CNAs) in a nursing home. The home argued that the unit should include other non-professional employees such as cooks, dietary aides, activity assistants, the social services assistant, staffing coordinator, maintenance assistant, the medical records and data entry clerks, central supply clerk, and the receptionist. In other words, the employer argued for the well-established facility-wide “service and maintenance unit” that has been the approved unit in nursing homes for more than 20 years.
Under the new standard articulated by the NLRB, if the union seeks a unit of employees that is “readily identifiable as a group” (e.g., a unit of a single job classification) and those employees “share a community of interest,” the NLRB will approve the unit requested by the union unless the employer can show that employees in a larger unit “share an overwhelming community of interest” with the employees in the unit requested by the union. The NLRB, applying their new standard, found that the unit of CNAs requested by the union was an appropriate unit and rejected the home’s request to add the other non-professional employees to the unit.
The dissent of Board Member Hayes explains the NLRB’s decision and its impact in the context of the NLRB’s proposed changes to its election procedures:
First, in this case, they [the NLRB majority] define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included. This will in most instances encourage union organizing in units as small as possible. Next, by proposing to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.
Non-acute healthcare providers can expect that unions will seek smaller units which likely will include units consisting of employees in a single-classification. This will make it easier for unions to win elections, by allowing them to limit the requested unit to those employees with the strongest support for the union. This will lead to a proliferation of bargaining units in nursing homes, senior living facilities, and other non-acute healthcare providers and, as a consequence, multiple contracts and potential job actions by multiple groups of employees.
Non-acute healthcare providers should consult with their labor counsel to discuss this decision and strategies for minimizing its potentially damaging impact on their facilities and the care they provide.
The NLRB has advised the public that all employers covered by the National Labor Relations Act (generally all private sector employers) will be required to post a notification of employees’ rights by November 14, 2011. The Board’s August 25th press release, which contains links to the Final Rule and additional information, is reprinted below. The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading.
The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.
Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website at https://www.nlrb.gov/poster.
The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.
Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, with Member Brian Hayes dissenting.
The rule will be published in the Federal Register tomorrow, and will take effect 75 days later. A fact sheet with further information about the rule is available here.
The National Labor Relations Board has proposed rule changes that would significantly reduce the time between the date the union requests an election and the date the NLRB conducts the election. These changes, if implemented, would dramatically affect an employer’s ability to communicate with its employees before an NLRB election, and would give unions a significant advantage in organizing non-union employers.
Among other things, the NLRB proposes to:
- Accelerate the initial hearing date following the filing of a union petition;
- Require the employer to disclose its position prior to or at the initial hearing;
- Significantly limit the employer’s ability to litigate issues – including those relating to supervisory status – before the election;
- Preclude the employer from appealing regional office decisions to the NLRB before the election; and
- Require that the employer provide the union with employees’ phone numbers and e-mail addresses in addition to their home addresses.
The likely result of the proposed new rules would be an NLRB election held within a few weeks of a union petition. This is far shorter than the current timeframe, in which the vast majority of initial elections are conducted within 56 days of a union petition. In addition to the procedural changes that limit the employer’s rights, the shortened timeframe would severely restrict the employer’s ability to communicate its position and would compromise employees’ ability to get information from both sides to make an informed decision about union representation and collective bargaining.
Under the existing rules, unions won nearly 68% of NLRB elections in 2010. In the healthcare industry the union win rate was 71% in 2010. Under the proposed new rules, unions would undoubtedly win even more elections. For this reason, healthcare employers should assess the employer relations environment at their facilities and their ability to communicate with employees, on short notice, about this important issue.
Jackson Lewis participated in the NLRB’s hearing on the proposed rule changes, and also participated in the hearing conducted by the House Committee on Education and the Workforce (“Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice”). In addition, as counsel to Assisted Living Federation of America, Jackson Lewis is submitting comments on the NLRB’s proposed new rules. The NLRB is expected to promulgate final rules, similar or identical to the proposed rules, later this year after the public comment period.
Thanks to Edward V. Jeffrey for this posting.
NLRB Issues Complaint Against California Nurses Association For Interfering with Employees' Rights and For Failing to Bargain
On April 29th the National Labor Relations Board (NLRB) issued a complaint against the California Nurses Association (CNA) for interfering with and coercing employees in their right not to engage in union activity, as well as for altering employees’ terms and conditions of employment without the employer’s agreement or consent. After negotiating a contract with the Henry Mayo Hospital in California, the CNA, as many unions do once an agreement is reached, told the Hospital it would print copies of the contract. However, the printed version included unilaterally added language on the back cover of the contract about employees’ “Weingarten Rights.” “Weingarten Rights” give unionized employees the right to request union representation during any investigatory interview conducted by an employer. The Hospital filed an unfair labor practice charge against the CNA. Finding reasonable cause to believe the Union violated the National Labor Relations Act, the NLRB’s Regional Office in California issued a complaint against the Union and scheduled a hearing for August 1st.
Employers who have contracts with the CNA or any other National Nurses United (NNU) affiliated union that have had similar language printed on the back of their collective bargaining agreements, without consent, should contact labor counsel for advice as to how to proceed and whether to file an unfair labor practice charge. Employers generally should be cautious when Unions agree to take care of printing the contract, that the printed version accurately represents the parties agreement without unilateral amendments or additions.
Thanks to Steve Porzio for this submission.
Thought some of you may be interested in the article at the following link:
Fifteen months after nurses at Lee’s Summit Medical Center voted 68 - 59 to decertify the National Nurses Organizing Committee (“NNOC”), the NNOC has announced it will withdraw as the unit’s bargaining agent. The NNOC’s decision to withdraw came days before the second certification election was scheduled to be held. Approximately 130 nurses would have been eligible to participate in the second certification election.
Nurses at Lee’s Summit Medical Center have had union representation since 2000. The NNOC’s decision to withdraw as the unit’s bargaining agent follows a September 2010 vote where non-nursing employees of the Medical Center voted against representation by the Service Employees International Union.
Thanks to Nora Kaitfors for this submission.
On December 1, 2010, NNU’s affiliate, the Michigan Nurses Association (MNA) ratified a new collective bargaining agreement with Sparrow Hospital in Lansing calling for penalties of up to $1,200 in cases where the Hospital fails to rectify a staffing shortage. The Union claims that this new staffing language is “second to none.”
Economic terms of the settlement were not as robust with pay increases limited to 1.5% for each year of the three year agreement. In addition, health benefit costs will increase, although only to 8% on January 1, 2011. The union claims these costs are still less than other employee groups have had to pay.
The parties’ last contract expired in October. Operating without a contract, MNA called for a strike which was scheduled for November 22. This strike was averted on November 19th, when the Hospital and Union reached a tentative deal on a new contract.