High court rul­ing forc­ing NLRB to re­open cases has hos­pi­tals wary

Modern Healthcare - - NEWS - By Joe Carl­son

Hos­pi­tal sys­tems will be closely watch­ing how the Na­tional La­bor Re­la­tions Board han­dles hun­dreds of la­bor dis­pute cases it must re­open in the wake of a U.S. Supreme Court de­ci­sion last week.

The NLRB cases that will be re­con­sid­ered in­clude dis­putes over what em­ploy­ees can say about their em­ploy­ers on so­cial me­dia sites and how much free­dom work­ers have to openly crit­i­cize their em­ploy­ers in front of cus­tomers, in­clud­ing pa­tients. The NLRB also will have to re-de­cide the July 30, 2012 de­ci­sion in Ban­ner Health Sys­tem and James A. Navarro, in which the board con­cluded that the hos­pi­tal could not en­force a pol­icy that for­bade an em­ployee from dis­cussing an on­go­ing mis­con­duct in­ves­ti­ga­tion.

The Supreme Court ruled unan­i­mously in Na­tional La­bor Re­la­tions Board v. Noel Can­ning that Pres­i­dent Barack Obama lacked the con­sti­tu­tional author­ity to uni­lat­er­ally ap­point three peo­ple to the five-mem­ber la­bor board dur­ing a Se­nate re­cess in Jan­uary 2012. Can­ning is a bev­er­age dis­trib­u­tor who protested an NLRB or­der to honor a union agree­ment by ar­gu­ing that the NLRB lacked a quo­rum to make de­ci­sions since three of its mem­bers were ap­pointed il­le­gally.

Obama since has been able to win Se­nate con­fir­ma­tion of his ap­pointees and the board has a full com­ple­ment of three Demo­cratic ap­pointees and two Repub­li­can ap­pointees. But last week’s rul­ing means the board will have to re­con­sider hun­dreds of cases that were de­cided by a board with three in­validly ap­pointed mem­bers. Many of the board de­ci­sions are up on court ap­peal and will have to be re­manded to the NLRB for full hear­ings.

It’s not yet clear how many cases will be af­fected by the in­val­i­da­tion of the three Obama-ap­pointed NLRB mem­bers—Sharon Block, Richard Grif­fin and Ter­ence Flynn. Es­ti­mates ranged from the low hun­dreds to up to 1,400 in­di­vid­ual cases, with some still pend­ing in fed­eral ap­peals courts.

“We hope the NLRB will reis­sue de­ci­sions in these cases quickly for the sake of the work­ing fam­i­lies af­fected,” said Mary Kay Henry, pres­i­dent of the Ser­vice Em­ploy­ees In­ter­na­tional Union, the union rep­re­sent­ing the largest num­ber of health­care work­ers.

Ex­perts say it doesn’t ap­pear likely that the NLRB now will come to dif­fer­ent con­clu­sions in cases that fa­vored em­ploy­ees. But it re­mains to be seen if the NLRB will take a closer look at past cases that were de­cided in em­ploy­ers’ fa­vor. “What will be very in­ter­est­ing to see is if the board rub­ber-stamps these or if it will dive into these is­sues to push its agenda,” said Michael Asen­sio, a la­bor-man­age­ment at­tor­ney who rep­re­sents em­ploy­ers with Baker Hostetler in Colum­bus, Ohio.

In par­tic­u­lar, hos­pi­tal of­fi­cials will be keenly in­ter­ested in how the NLRB con­strues con­tro­ver­sies in­volv­ing em­ployee speech. Vir­tu­ally ev­ery hos­pi­tal has poli­cies gov­ern­ing what front-line providers, in­clud­ing nurses and doc­tors, can say and do. That’s be­come a crit­i­cal is­sue as sys­tems try to achieve high pa­tient-sat­is­fac­tion scores that can guar­an­tee bet­ter pay­ments from in­sur­ers. But such poli­cies can be seen as in­ter­fer­ing with work­ers’ rights to talk about work­place con­di­tions and union or­ga­niz­ing.

“It is the in­ter­sec­tion be­tween qual­ity, safety and em­ployee en­gage­ment with le­git­i­mate busi­ness and work rules,” said K. Bruce Stick­ler, a la­bor- man­age­ment at­tor­ney with Drinker Bid­dle & Reath in Chicago who has worked as la­bor coun­sel to hos­pi­tals and the Amer­i­can Hos­pi­tal As­so­ci­a­tion. “The big­gest is­sue from my per­spec­tive is now there is un­cer­tainty.”

There also was un­cer­tainty among the Supreme Court jus­tices, even though the opin­ion was tech­ni­cally unan­i­mous. A com­bat­ive ma­jor­ity de­ci­sion writ­ten by Jus­tice Stephen Breyer ran to 54 pages, while an equally as­sertive mi­nor­ity con­cur­rence by Jus­tice An­tonin Scalia came in at 49 pages. The two opin­ions parsed the def­i­ni­tions of the words “hap­pen” and “the,” probed the orig­i­nal in­tent of the Con­sti­tu­tion’s re­cess-ap­point­ment pro­vi­sion, and sur­veyed ev­ery re­cess of Congress since the first one on Dec. 23, 1800.

Breyer’s ma­jor­ity opin­ion found that the four-day re­cess when the three NLRB mem­bers were ap­pointed in 2012 was too short to be con­sid­ered a true re­cess, which must be at least 10 days— a fresh in­ter­pre­ta­tion of the Con­sti­tu­tion blasted by the con­sti­tu­tional orig­i­nal­ists in Scalia’s con­cur­ring mi­nor­ity.

The re­sult, Scalia wrote, is that fu­ture pres­i­dents will be able to use Se­nate re­cesses of more than 10 days in the fu­ture to uni­lat­er­ally ap­point of­fi­cials of govern­ment boards and agen­cies, in­clud­ing some that af­fect health­care.

For in­stance, for­mer CMS Ad­min­is­tra­tor Dr. Don Ber­wick was ap­pointed by Obama in a con­tro­ver­sial re­cess ap­point­ment in 2010 af­ter Se­nate Repub­li­cans blocked his con­fir­ma­tion.

“The court’s de­ci­sion trans­forms the re­cess-ap­point­ment power from a tool care­fully de­signed to fill a nar­row and spe­cific need into a weapon to be wielded by fu­ture pres­i­dents against fu­ture Se­nates,” Scalia wrote.

Jus­tice An­tonin Scalia says the rul­ing trans­forms the re­cess ap­point­ment power from a “tool” into a “weapon.”

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