Pres­sure point

Down­sized NLRB rules don’t ap­pease crit­ics

Modern Healthcare - - THE WEEK IN HEALTHCARE - Joe Carl­son

The National La­bor Re­la­tions Board blinked in the face of in­tense po­lit­i­cal pres­sure, pass­ing a smaller pack­age of union-reg­u­la­tion re­forms that sat­is­fied nei­ther crit­ics of the fed­eral agency nor its sup­port­ers in or­ga­nized la­bor.

On a 2-1 vote Nov. 30, the NLRB voted to send eight spe­cific rule changes to its staff, which will draft a fi­nal rule widely ex­pected to be ap­proved by the board be­fore the end of De­cem­ber. The vote was closely watched in health­care, an in­dus­try that is a ma­jor tar­get for unions and where la­bor costs typ­i­cally make up half of hos­pi­tal bud­gets (Sept. 5, p. 6).

The two most talked-about changes ap­proved would take away some pre-elec­tion ap­peal rights and de­lay lit­i­ga­tion over bar­gain­ing unit mem­ber­ship un­til af­ter the vote takes place.

How­ever, the Demo­crat-ap­pointed NLRB chair­man, Mark Pearce, de­cided to de­fer ac­tion on some of the most con­tro­ver­sial changes in a no­tice of rule­mak­ing pub­lished in June af­ter pub­lic and po­lit­i­cal op­po­si­tion and a threat by the board’s only Repub­li­can to re­sign in protest.

For ex­am­ple, the board’s vote did not in­clude a change that would have set a 14-day dead­line for hold­ing union elec­tions. Nor did the res­o­lu­tion in­clude a pro­posal that would have forced em­ploy­ers to hire le­gal coun­sel and de­clare all of their po­ten­tial le­gal ar­gu­ments against an elec­tion within seven days of be­ing pre­sented with union-sig­na­ture cards.

Still, Jones Day la­bor at­tor­ney G. Roger King— who tes­ti­fied be­fore the NLRB about the pro­posed changes—es­ti­mated that about 70% of the sub­stance of what was pro­posed is still in­cluded in the changes for­warded to staff last week.

The new rules will re­move the gen­er­ally ac­cepted prac­tice that an NLRB re­gional di­rec­tor must wait 25 days be­fore sched­ul­ing a vote, although it’s not clear ex­actly how that will af­fect the tim­ing of most elec­tions. King said the av­er­age wait­ing time of 38 days would be cut roughly in half. “The safest thing to say is the elec­tion pe­riod will be short­ened,” King said. “How much will de­pend on what type of is­sues are raised, the size of the unit and other fac­tors.”

Pearce said dur­ing last week’s NLRB meet­ing that the tim­ing changes af­fected only the 10% of elec­tions in which em­ploy­ers use “need­less lit­i­ga­tion and dis­putes” to stretch the wait time be­fore con­tested elec- tions to an av­er­age of 101 days.

David John­son, di­rec­tor of or­ga­niz­ing for National Nurses United, said the changes do noth­ing to stop the “out­ra­geous tac­tics” em­ploy­ers use in the weeks be­fore an elec­tion to dis­cour­age work­ers from join­ing. “In many cases, these new pro­posed rules would have no ef­fect on the tim­ing of an elec­tion, un­like the rules that were pro­posed in June, which would have dra­mat­i­cally short­ened the time be­fore an elec­tion,” he said. “It will some­what limit em­ploy­ers’ abil­ity to drag out an elec­tion for months, but it will not sig­nif­i­cantly shorten the time be­fore the av­er­age elec­tion.”

While union of­fi­cials say de­lay­ing elec­tions ben­e­fits em­ploy­ers by giv­ing them time to hire anti-union con­sul­tants, man­age­ment-la­bor at­tor­neys say that short­en­ing the time to the bal­lot box ben­e­fits la­bor by lim­it­ing the abil­ity of em­ploy­ers to com­mu­ni­cate with work­ers.

On the same day that the NLRB voted for its changes, the Repub­li­can-con­trolled House of Rep­re­sen­ta­tives ap­proved the Work­force Democ­racy and Fair­ness Act, which among other pro­vi­sions stip­u­lates that no union vote can be held be­fore 35 days of de­bate. How­ever, even sup­port­ers of the bill said it ap­peared to have lit­tle chance of suc­cess of pas­sage in the Demo­crat-con­trolled Se­nate.

Brian Newell, com­mu­ni­ca­tions di­rec­tor for the bill’s chief spon­sor, Rep. John Kline (R-minn.), said the bill has no spon­sor in the Se­nate, and he was not aware of any se­na­tor who planned to spon­sor the law in the up­per cham­ber. Newell said the bill re­mains rel­e­vant be­cause NLRB Chair­man Pearce said he plans to rein­tro­duce his more con­tro­ver­sial la­bor-law changes some­time next year.

The board found it­self in the cross hairs of par­ti­san ac­ri­mony af­ter it re­leased a rare no­tice of pro­posed rule­mak­ing in June, draw­ing more than 60,000 pub­lic com­ments, in­clud­ing from the Amer­i­can Hos­pi­tal As­so­ci­a­tion.

The board in­cludes two Democrats and one Repub­li­can, but Demo­crat Craig Becker’s re­cess ap­point­ment ex­pires at the end of the year. That adds ur­gency to Pearce’s push for the rule changes, be­cause the board can’t take ac­tion with­out a three-mem­ber quo­rum. The NLRB is sup­posed to have five mem­bers, but ex­perts say there’s vir­tu­ally no chance the Se­nate would ap­prove an­other nom­i­nee to the board be­fore the end of this year.

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