The United States Supreme Court has agreed to review a Seventh Circuit decision requiring non-union Illinois home health care workers serving Medicaid recipients to pay union fees.  Harris v. Quinn, No. 12-861, cert. granted 10/1/13.  Pursuant to a 2009 executive order and a collective bargaining agreement, the state of Illinois and SEIU Healthcare Illinois & Indiana agreed that home health care workers must pay a “fair share” fee to the union that acts as their exclusive bargaining representative.  The home health care workers have asked the Supreme Court to determine whether compelling them to “accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid program” violates the First and Fourteenth Amendments to the United States Constitution.  The Petitioners argue that “[t]his case presents the extraordinary circumstance of citizens being forced to petition a state for more benefits from a public-aid program through an advocate of the state itself designated.”  The Respondents, on the other hand, argue that “the State of Illinois functions in all relevant respects as an employer of these home-care providers,” so that the constitutional petition issue is not truly presented.  We will watch this case and provide updates.

A hospital violated the National Labor Relations Act when it changed its dress policy without first giving the union representing its nurses an opportunity to bargain and by failing to provide information the union requested regarding the policy, a National Labor Relations Board administrative law judge has found in Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County, Case No. 04-CA-097635 (Sept. 10, 2013). 

The hospital had a dress policy that provided each department would develop and maintain guidelines on appropriate dress.  The policy allowed nurses wide latitude as to the type and color of scrubs they wore at work.  In 2012, the hospital implemented a new dress policy requiring all nurses to wear solid navy blue scrubs, except for those working in the operating, delivery, and cardiac rehabilitation rooms, who would wear colors and patterns specific to their departments.  The hospital provided each nurse with three free sets of the required scrubs.  The new policy also limited the apparel that nurses could wear over their scrubs. 

The union representing the nurses demanded to bargain over the policy change and requested information regarding the new policy.  The hospital did not respond to either request.  The union then filed an unfair labor practice charge and the NLRB’s Acting General Counsel issued a complaint alleging the hospital violated the NLRA by: (1) failing and refusing to bargain with the union over the change to the dress policy, and (2) failing and refusing to furnish the union with the requested information.

The ALJ held that workplace apparel is a mandatory subject of bargaining and that the hospital’s change to the dress policy was material, substantial and significant.  Accordingly, the ALJ found the failure to bargain over and its unilateral change to the dress policy violated Sections 8(a)(1) and (5) of the NLRA.  Section 8(a)(1) prohibits an employer from interfering with employees as they engage in rights guaranteed by the NLRA.  Section 8(a)(5) requires the employer to bargain collectively in good faith with the union.

The ALJ also found the information the union requested about the new policy was directly related to the nurses’ terms and conditions of employment. Thus, it was presumptively relevant to the union’s proper performance of its collective bargaining duties.  The ALJ noted that the hospital had an obligation to respond to this request in good faith as promptly as possible, unless it presented sufficient evidence to rebut the presumption of relevance.  Here, the hospital did not rebut that presumption because it did not respond to the union’s request.  Therefore, the ALJ held the hospital violated Sections 8(a)(5) and (1) of the NLRA by refusing to respond to the union’s information request.

A hospital lawfully discontinued the services of a physician who complained about overcrowded emergency room conditions, a federal appeals court found in Genova v. Banner Health; et al., No. 12-1314 (10th Cir. August 20, 2013), rejecting the physician’s claims that the hospital and its administrator violated the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) and Colorado state law by discontinuing his services.

The hospital discontinued the physician’s services after he called a hospital administrator insisting that the hospital’s emergency room was too busy and that patients should be diverted to other hospitals.  The administrator consulted with another physician on duty in the emergency room that night who reported that it was busy, but that the hospital could handle the workload.  Citing the first physician’s unprofessional manner on this and other occasions, the administrator decided to discontinue the physician’s services.

The physician sued the hospital and the administrator in federal district court alleging that by discontinuing his services for reporting overcrowded emergency room conditions, they had violated EMTALA and state law.  The district court granted the hospital and the administrator summary judgment and the physician appealed to the Tenth Circuit. 

The Tenth Circuit explained that the basic statutory point of EMTALA is that a hospital cannot “dump” a patient requiring emergency care on another hospital when there is no medical justification for doing so.  The whistleblower provisions of EMTALA protect certain persons who refuse to transfer a patient with an emergency medical condition who has not been stabilized or who report a violation of EMTALA.  The Tenth Circuit noted that in this case, instead of complaining that he was retaliated against for refusing to transfer a patient, the physician wanted to send patients elsewhere and instead of complaining about patient dumping, he complained about patient hoarding.  Since neither scenario is protected by EMTALA’s whistleblower provisions, the Tenth Circuit affirmed the dismissal of the EMTALA claims.

The Tenth Circuit also affirmed the dismissal of the state law claims, finding the physician had released these claims.  The physician’s contract with the hospital included a provision releasing the hospital from any liability connected with the termination of his medical staff membership and clinical privileges.  The Tenth Circuit found this release barred the physician’s state law claims.  The Tenth Circuit also rejected the physician’s claim that enforcing the release would violate Colorado public policy because the physician failed to identify any Colorado statute, administrative regulation, or ethical code clearly mandating the reporting of patient overcrowding.

A hospital that failed to supply relevant information to the union representing its nurses concerning the effects of the Affordable Care Act (ACA) on the hospital’s business has committed unfair labor practices in its CBA negotiations with the union, NLRB Administrative Law Judge Jay Pollack has ruled.  Sutter East Bay Hospitals d/b/a Sutter Delta Medical Center, Case No. 20-CA-093609 (July 23, 2013). 

At the beginning of bargaining for a successor contract, Sutter stated in a presentation that the ACA was going to affect the hospital’s business and that the hospital had to bargain and make proposals accordingly.  Sutter stated that the healthcare reform law would drastically reduce reimbursements from the government and that it needed to take steps to deliver healthcare at reduced payment rates.  Sutter also made the same point in a letter to its nurses.  Sutter went on to make numerous proposals for union concessions, but did not say they were based on the healthcare reform law.  After a year in negotiations, Sutter declared an impasse, saying the Union’s refusal to respond to the last, best, and final offer was deemed a rejection of the offer.  It then implemented various proposals in the offer.  The Union filed unfair labor practices charges contending Sutter failed and refused to furnish the Union with information concerning the effects of the ACA, therefore, no legal impasse existed. 

In finding that Sutter was obligated to furnish the Union with the requested information, the ALJ noted that the hospital never stated at the bargaining sessions that its proposals were based on the healthcare reform law.  However, the ALJ explained that Sutter never withdrew its initial position that the healthcare reform law required drastic reductions in costs.  Accordingly, the ALJ concluded that the hospital placed in issue the effects of the healthcare reform law, and therefore was obligated to furnish the Union with the requested information.

The ACA will have significant effects on employers nationwide.  Employers in negotiations for successor contracts nevertheless should refrain from making explicit statements as to those effects and/or consider refusing to respond to union information requests concerning the same without first consulting with their labor counsel.

Beginning this month, the Massachusetts Nurses Association (“MNA”) initiated a signature drive to support legislation requiring hospitals to limit the number of patients cared for by individual nurses.  The initiative is titled the “Patient Safety Act” and strictly would limit nurses in a medical/surgical unit to caring for 4 patients, nurses in emergency departments to 1 to 3 patients, and nurses in critical care units to 1 to 2 patients.  The MNA claims that such requirements are necessary because “hospitals are forcing nurses to ration care, placing patient’s health in jeopardy.”  Lurking in the background of this issue are a recent nurses’ strike and use of staffing levels as a key bargaining point in negotiations between the nurses’ union and Massachusetts hospitals.  The proposed legislation would fine hospitals $25,000 per day for violations of staffing limits, require submission of annual staffing plans to the state health department, and affirmative efforts by the state health department to promote the nursing profession in order to swell ranks.  Similar efforts and legislation have been adopted in California and introduced in 10 other states.