New rules, ap­poin­ments and le­gal de­ci­sions likely to spark or­gan­inz­ing in health­care

Modern Healthcare - - Front Page -

With union ac­tiv­ity al­ready strong in health­care, Pres­i­dent Barack Obama’s Na­tional La­bor Re­la­tions Board has been nix­ing old rules and con­sid­er­ing new tweaks in ways that ex­perts say are clearly in­tended to in­vig­o­rate or­ga­nized la­bor.

As one of the board’s three Democrats saw her term on the la­bor board ex­pire, the NLRB handed down a new rule last week that re­quires the post­ing of em­ployee union rights in most work­places, along with de­ci­sions in three cases that over­turn long-held prece­dents on how new unions are formed.

Most notable for health­care sys­tems is the de­ci­sion in one case in par­tic­u­lar, Spe­cialty

Health­care and Re­ha­bil­i­ta­tion Cen­ter of Mo­bile, which tossed out a two-decade-old rule that de­fined how new bar­gain­ing units can form in out­pa­tient clin­ics, long-term-care fa­cil­i­ties and other non-acute health­care set­tings. The new process gives unions wide lat­i­tude to de­fine small non-acute health­care bar­gain­ing units, which crit­ics say fa­vor union or­ga­niz­ers.

Far more pro­found changes in union or­ga­niz­ing are on the horizon. And with an­other Demo­crat’s term ex­pir­ing at the end of the year, the NLRB has a short win­dow to act on them be­fore los­ing its quo­rum.

In June, the NLRB com­menced its first sub­stan­tive rule­mak­ing process in decades, and the board’s mem­bers are re­view­ing a del­uge of pub­lic com­ment. The board is con­sid­er­ing changes to how union elec­tions are con­ducted and lit­i­gated, with an over­all em­pha­sis on speed­ing up the process and de­fer­ring pre-elec­tion con­tro­ver­sies un­til after vot­ing has ended.

La­bor lead­ers say the changes bring much­needed re­forms to a process that em­ploy­ers fre­quently ex­ploit to de­lay or­ga­niz­ing and spread mis­in­for­ma­tion about unions. Crit­ics counter that the adop­tion of 10-day “quickie elec­tions” and the post­pone­ment of pre-elec­tion lit­i­ga­tion es­sen­tially give unions the abil­ity to launch a sneak at­tack on un­sus­pect­ing em­ploy­ers.

The pro­posed changes could have a sig­nif­i­cant ef­fect on health­care em­ploy­ers be­cause their sta­tus as large com­mu­nity em­ploy­ers with sta­ble work­forces has made them a fa­vorite tar­get of union or­ga­niz­ers over the years. The Amer­i­can Hos­pi­tal As­so­ci­a­tion went on record—in live tes­ti­mony to the NLRB and with a 29-page com­ment let­ter to the board— strongly op­pos­ing the pro­posed amend­ments.

The fi­nal dead­line for sub­mit­ting com­ments to the board on the pro­posed rule changes is Sept. 6, and more than 69,000 com­ments have al­ready been sub­mit­ted, said NLRB spokes­woman Nancy Clee­land.

Although the board faces no spe­cific dead­line, many la­bor ex­perts ex­pect a de­ci­sion be­fore the end of De­cem­ber be­cause the board is ex­pected to drop down to two mem­bers and lose its le­gal au­thor­ity to act, ab­sent action from Congress be­fore then. The board is sup­posed to have five mem­bers, all ap­pointed by the pres­i­dent and con­firmed by the Se­nate.

Crit­ics say the Obama ad­min­is­tra­tion wants to pro­vide the unions cov­eted changes after the fail­ure to pass the Em­ployee Free Choice Act in 2009, while the unions are ea­ger to get what changes they can in place be­fore the un­cer­tainty of the 2012 elec­tions.

Katheren Koehn, CEO of the 70,000mem­ber Na­tional Fed­er­a­tion of Nurs­ing, dis­agreed with crit­i­cisms that the changes were part of a Demo­cratic pay­back to or­ga­nized la­bor. “I think it’s just look­ing at what’s fair and what needs to be done, whether it’s Barack Obama there or some­one else,” she said. “This is about ba­sic fair­ness.”


Na­tional Nurses United work­ers strike in March. A le­gal de­ci­sion now gives unions wide lat­i­tude to de­fine health­care bar­gain­ing units.

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