NLRB’s rul­ings chal­lenged af­ter court says group lacked quo­rum

NLRB lacked quo­rum; dozens of rul­ings ques­tioned

Modern Healthcare - - NEWS - Ashok Selvam

Hos­pi­tals and health sys­tems in dis­putes with la­bor unions may in­creas­ingly duck the author­ity of the Na­tional La­bor Re­la­tions Board by point­ing to an ap­peals court’s rul­ing that the board acted with no real quo­rum for the past year.

The U.S. Cir­cuit Court of Ap­peals in Washington ruled last month that the Obama ad­min­is­tra­tion un­con­sti­tu­tion­ally used re­cess ap­point­ments to name two new NLRB mem­bers on Jan. 4, 2012, con­clud­ing Congress wasn’t of­fi­cially in re­cess. Since those mem­bers joined, the board has made more than 200 rul­ings, NLRB spokes­woman Nancy Clee­land said.

Af­ter the cir­cuit court’s de­ci­sion, at­tor­neys from 19-hospi­tal Prime Health­care Ser­vices, On­tario, Calif., in­formed union of­fi­cials of its re­fusal to com­ply with two NLRB rul­ings made in 2012. Three other sig­nif­i­cant NLRB rul­ings in the health­care sec­tor could be chal­lenged, said G. Roger King, a man­age­ment la­bor at­tor­ney with Jones Day. The firm rep­re­sents an em­ployer in Noel Can

ning v. NLRB, the case in­volv­ing a Washington bev­er­age bot­tler that led the D.C. court to rule that the NLRB ap­point­ments were un­con­sti­tu­tional. “We are get­ting calls from em­ploy­ers all over the coun­try on this is­sue,” King said.

Le­gal ob­servers think the case will head to the U.S. Supreme Court.

In the mean­time, for-profit Prime is ig­nor­ing two De­cem­ber rul­ings. In one, in­volv­ing Cleve­land tele­vi­sion sta­tion WKYC-TV, the NLRB re­versed past de­ci­sions and re­quired the col­lec­tion of union dues de­spite the ex­pi­ra­tion of a la­bor con­tract. The sec­ond in­volved Pied­mont Gar­dens, a con­tin­u­ing-care cen­ter in Oak­land, Calif. In that de­ci­sion, the board ruled that em­ploy­ers must fur­nish in­ter­nal in­ves­ti­ga­tion doc­u­ments to union of­fi­cials.

Not com­ply­ing with a rul­ing is a typ­i­cal pre­cur­sor to fil­ing an ap­peal, Prime as­sis­tant gen­eral coun­sel Mary Schottmiller wrote in an e-mail. The un­con­sti­tu­tion­al­ity of the ap­point­ments gives Prime fur­ther rea­son to ap­peal a de­ci­sion the com­pany op­posed.

“Here, the D.C. Cir­cuit Court of Ap­peals has is­sued a very clear and de­tailed rul­ing that the NLRB has no author­ity to act,” Schottmiller wrote. “The de­ci­sions of the cur­rent NLRB were ques­tion­able even be­fore that rul­ing, as the NLRB was se­ri­ally over­rul­ing long-stand­ing prece­dent—prece­dent that had for decades been ac­cepted by both Demo­cratic and Repub­li­can NLRB ap­pointees.”

One health­care case of in­ter­est in­volves Ban­ner Health, the 22-hospi­tal sys­tem head­quar­tered in Phoenix. In an Au­gust rul­ing, the NLRB found Ban­ner to be in vi­o­la­tion of la­bor laws for dis­cour­ag­ing work­ers at 214-bed Ban­ner Estrella Med­i­cal Cen­ter in Phoenix from talk­ing about in­ter­nal in­ves­ti­ga­tions re­gard­ing em­ployee mis­con­duct. Ban­ner of­fi­cials ar­gued that the pol­icy makes it eas­ier to pro­vide con­fi­den­tial­ity to the em­ployee be­ing in­ves­ti­gated.

In a July de­ci­sion, the NLRB ruled that the 220bed Keck Hospi­tal of USC in Los An­ge­les in­ap­pro­pri­ately pro­hib­ited off-duty em­ploy­ees from be­ing on hospi­tal premises. The pol­icy al­lowed work­ers on the cam­pus only if they were pa­tients, were vis­it­ing a pa­tient or con­duct­ing busi­ness tied to their jobs. The con­cern was that Keck was bar­ring em­ployee ac­cess to pre­vent union or­ga­niz­ing. The NLRB struck down Keck’s pol­icy, rul­ing the ac­cess re­stric­tions were too broad.

A third de­ci­sion of note came in Septem­ber and in­volved Fin­ley Hospi­tal, a 119-bed fa­cil­ity in Dubuque, Iowa. The board ruled that the hospi­tal could not dis­con­tinue an­nual raises for nurses stip­u­lated in a col­lec­tive bar­gain­ing agree­ment af­ter the con­tract’s ex­pi­ra­tion.

Of­fi­cials from Ban­ner, Keck and Fin­ley de­clined to com­ment when asked whether they planned to file ap­peals or to chal­lenge the NLRB. How­ever, doc­u­ments from last year show at­tor­neys in the Keck case have al­ready raised the is­sue of the re­cess ap­point­ments in court.

Larger sys­tems with deeper le­gal war chests are more likely to chal­lenge the NLRB de­ci­sions they don’t like, said Mark Nel­son, a la­bor and man­age­ment at­tor­ney with DrinkerBid­dle. Sys­tems and hos­pi­tals in Cal­i­for­nia, al­ways a hot­bed of union ac­tiv­ity, are also good can­di­dates, he added.

Rep­re­sen­ta­tives from two hospi­tal sys­tems that are fa­mil­iar with hos­tile union ac­tiv­ity and fit Nel­son’s de­scrip­tion of a sys­tem likely to chal­lenge re­cent NLRB rul­ings—32-hospi­tal Kaiser Per­ma­nente in Oak­land, Calif., and 24hos­pi­tal Sut­ter Health in Sacra­mento, Calif.— said they have no plans to fol­low Prime’s lead.

Union of­fi­cials are brac­ing for the pos­si­bil­ity of oth­ers fol­low­ing Prime and chal­leng­ing their NLRB vic­to­ries. “Screw all of you guys was the mes­sage they were send­ing,” SEIU-UHW at­tor­ney Bruce Har­land said.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.