NLRB moves ahead with con­tro­ver­sial rules

Modern Healthcare - - EDITORIAL MODERN HEALTHCARE - Joe Carl­son

Hos­pi­tals protest as NLRB moves ahead with con­tro­ver­sial rules

The em­bat­tled National La­bor Re­la­tions Board has pushed ahead with its con­tro­ver­sial set of rules de­signed to speed up con­tested union elec­tions but post­poned its new re­quire­ment that most em­ploy­ers post a no­tice of union rights in the work­place.

Both changes, how­ever, have been chal­lenged by fed­eral lit­i­ga­tion from em­ploy­ers-rights groups in­clud­ing the Coali­tion for a Demo­cratic Work­place, which counts as mem­bers the Amer­i­can Hos­pi­tal As­so­ci­a­tion, the Fed­er­a­tion of Amer­i­can Hos­pi­tals and the state hos­pi­tal as­so­ci­a­tions of Colorado, Ten­nessee and Texas, ac­cord­ing to its web­site.

The national la­bor board’s re­cent ac­tions have been closely scru­ti­nized in health­care, where union lead­ers have made no se­cret of their plans to strate­gi­cally tar­get hos­pi­tal jobs that can­not be moved off­shore. La­bor lead­ers have said the new rules are needed to thwart em­ploy­ers’ prac­tice of fil­ing un­nec­es­sary pre­elec­tion lit­i­ga­tion to buy more time to lobby work­ers not to join the union. Em­ploy­ers say speed­ing up elec­tions clearly ben­e­fits the unions.

The NLRB, which is charged by fed­eral law with re­solv­ing dis­putes be­tween unions and em­ploy­ers, charted an ag­gres­sive course in 2011 to speed up elec­tion times and re­move pro­ce­dural and le­gal bar­ri­ers to union­iza­tion. The board aimed to do this through a sweep­ing—and, crit­ics say, se­cre­tive— rule­mak­ing process. The NLRB char­ac­ter­ized the change as an at­tempt to “mod­ern­ize” how new bar­gain­ing units form.

The fi­nal rule, pub­lished in the Fed­eral Reg­is­ter on Dec. 22, de­lays lit­i­ga­tion on bar­gain­ing-unit mem­ber­ship un­til af­ter the vot­ing has taken place, and gives more au­thor­ity to NLRB re­gional di­rec­tors to con­duct elec­tions with­out re­view from the full la­bor board in Washington.

The board also ap­proved a rule Aug. 30 forc­ing most com­pa­nies to post an 11-by-17inch poster in the work­place no­ti­fy­ing em­ploy­ees of their rights to or­ga­nize, although the NLRB said in a news re­lease that it had post­poned the ef­fec­tive date of the rule un­til April 30 in light of fed­eral lit­i­ga­tion chal­leng­ing it.

The sep­a­rate law­suits chal­leng­ing the poster re­quire­ment and the new rules on speed­ier elec­tions say the Demo­cratic ma­jor­ity on the NLRB was abus­ing the rule­mak­ing process to push a pro-union agenda.

Man­age­ment-la­bor at­tor­ney Charles Baldwin, a share­holder with Ogle­tree Deakins in In­di­anapo­lis, said con­ven­tional wis­dom in Washington says the NLRB is push­ing the changes through rule­mak­ing as a “con­so­la­tion prize” for union sup­port­ers be­cause Democrats had failed to de­liver la­bor’s ul­ti­mate goal of “card check” elec­tions in 2009’s failed Em­ployee Free Choice Act.

“Rule­mak­ing has its place, but what they’re try­ing to do is change the tenor of the (National La­bor Re­la­tions Act) through rule­mak­ing, as op­posed to let­ting Congress make the statute and then in­ter­pret­ing it,” Baldwin said.

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