NLRB con­fir­ma­tions pend­ing

Hos­pi­tals, unions watch­ing what new board will do

Modern Healthcare - - THE WEEK IN HEALTHCARE - Ashok Sel­vam

Health­care em­ploy­ers are wary while unions rep­re­sent­ing health­care work­ers are hope­ful as the U.S. Se­nate ap­pears poised this week to con­firm two Obama ad­min­is­tra­tion ap­pointees to the National La­bor Re­la­tions Board, thus mov­ing to­ward fill­ing all five board seats. Two Repub­li­can nom­i­nees also are also ex­pected to be con­firmed at a later date.

The board has been op­er­at­ing with three mem­bers since Jan­uary 2012. Se­nate Repub­li­cans had blocked the con­fir­ma­tions un­til reach­ing deal with Democrats this month to un­freeze some of Pres­i­dent Barack Obama’s ex­ec­u­tive branch ap­point­ments in re­turn for Se­nate Democrats drop­ping plans to limit fil­i­busters.

The con­fir­ma­tions would re­move the le­gal doubts about NLRB de­ci­sions made since Obama’s two NLRB re­cess ap­point­ments in Jan­uary 2012.

In Jan­uary 2013, the U.S. Cir­cuit Court of Ap­peals in Wash­ing­ton, D.C., ruled that those ap­point­ments and other Obama re­cess ap­point­ments were un­con­sti­tu­tional. That case, now on ap­peal be­fore the U.S. Supreme Court, called into ques­tion a num­ber of NLRB rul­ings af­fect­ing the health­care in­dus­try. The three­mem­ber board, which in­cluded the two re­cess ap­point­ments deemed il­le­gal and chair­man Mark Pearce, made more than 200 rul­ings dur­ing that pe­riod, ac­cord­ing to NLRB of­fi­cials.

Prime Health­care Ser­vices, a 19-hos­pi­tal health sys­tem based in On­tario, Calif., told union of­fi­cials rep­re­sent­ing Prime work­ers that it would not com­ply with two NLRB rul­ings made in 2012, in­volv­ing the two re­cess ap­pointees. Other health­care em­ploy­ers also ig­nored la­bor-friendly NLRB de­ci­sions made dur­ing that pe­riod.

Prime had ig­nored a De­cem­ber rul­ing in­volv­ing Pied­mont Gar­dens, a con­tin­u­ing-care cen­ter based in Oakland, Calif. The board had ruled that the cen­ter’s op­er­a­tors must pro­vide in­ter­nal in­vest­ment doc­u­ments to union of­fi­cials. Prime claimed the de­ci­sion was in­valid.

Mary Schottmiller, Prime’s as­sis­tant gen­eral coun­sel, said she ex­pects the NLRB to reis­sue its past rul­ings, in­clud­ing the Pied­mont Gar­dens de­ci­sion, to prod em­ploy­ers to com­ply. She doesn’t ex­pect Obama’s new ap­point­ments to have a ma­jor ef­fect.

The NLRB over­sees a num­ber of la­bor-union is­sues un­der the National La­bor Re­la­tions Act, in­clud­ing union cer­ti­fi­ca­tion and elec­tions, com­pli­ance with la­bor con­tracts, and what types of work­ers are el­i­gi­ble to union­ize.

This month the Obama ad­min­is­tra­tion nom­i­nated Kent Hirozawa and Nancy Schif­fer to the board, re­plac­ing Sharon Block and Richard Grif­fin, the two re­cess ap­pointees who were chal­lenged by Se­nate Repub­li­cans.

Hirozawa cur­rently serves as chief coun­sel to NLRB’s chair­man, while Schif­fer is the for­mer as­so­ciate gen­eral coun­sel at the AFL-CIO. She told the Se­nate Health, Ed­u­ca­tion, La­bor and Pen­sions Com­mit­tee last week that she would be im­par­tial in de­cid­ing on la­bor is­sues. Repub­li­can nom­i­nees Harry John­son and Philip Misci­marra would round out the five-mem­ber board upon con­fir­ma­tion.

A fully con­sti­tuted NLRB could ben­e­fit health­care em­ploy­ers by re­duc­ing lit­i­ga­tion costs, Schottmiller said.

But those sav­ings could be off­set by in­creased union­iz­ing ac­tiv­ity, said Michael Moschel, a part­ner with Nashville-based law firm Bass Berry & Sims.

One case that la­bor wants to take up with the newly con­sti­tuted NLRB in­volves the UPMC health sys­tem in Pitts­burgh. Lawyers rep­re­sent­ing the Ser­vice Em­ploy­ees In­ter­na­tional Union said UPMC dis­re­garded a pre­vi­ous set­tle­ment in a case in­volv­ing al­le­ga­tions that the hos­pi­tal sys­tem vi­o­lated more than 80 fed­eral la­bor laws. SEIU’s com­plaint in­cluded con­cerns about spy­ing on em­ploy­ees and dis­ci­plinary ac­tion against work­ers for union ac­tiv­i­ties.

Jon­nee Bent­ley, SEIU as­sis­tant gen­eral coun­sel, said hav­ing the NLRB op­er­at­ing at full strength could speed up a process that’s been slow, with weak penal­ties.

An­other is­sue that unions hope to ad­dress is whether med­i­cal in­terns and res­i­dents work­ing at hos­pi­tals can be union­ized. Deb­o­rah Burger, co­pres­i­dent of the 180,000-mem­ber National Nurses United said they should be

union, al­lowed to union­ize. She cited a 1999 NLRB de­ci­sion in­volv­ing Bos­ton Med­i­cal Cen­ter that ruled in­terns and res­i­dents were em­ploy­ees. That rul­ing was over­turned in 2004 by the NLRB.

Burger also hopes a 2006 case in­volv­ing Oak­wood Health­care, a four-hos­pi­tal sys­tem based in Dear­born, Mich., will be re­con­sid­ered. The NLRB is­sued a rul­ing re­strict­ing the el­i­gi­bil­ity of nurs­ing su­per­vi­sors for union mem­ber­ship, a set­back for the NNU.

But John Bor­sos, sec­re­tary-trea­surer for the National Union of Health­care Work­ers, isn’t that op­ti­mistic. He said the NLRB has failed in its mis­sion to pro­tect work­ers’ rights be­cause its en­force­ment arm hasn’t en­forced penal­ties when em­ploy­ers vi­o­late the law. “It’s less about just hav­ing five peo­ple on the board,” he said. “It’s a dys­func­tional in­sti­tu­tion.”

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