Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”

Following is an excerpt:

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices. …

Read the full post here.

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Looks to Make It Harder for Employees to Decertify Unions.”

Following is an excerpt:

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so.  Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the employees in a bargaining unit no longer want the union to represent them. …

An employer faced with evidence that a majority of its employees no longer wish to be represented by their union has always faced a difficult choice – whether to petition for an election or to respect its employees’ request and take the risk of charges and litigation by immediately withdrawing recognition. Clear understanding of the law and facts, as well as the potential consequences of each course of action has always been critical.  By issuing this Memo and announcing his goal, the stakes have clearly been raised, and the right of employees to decide—perhaps the ultimate purpose of the National Labor Relations Act—has been placed at serious risk.

Read the full post here.

The National Labor Relations Board (the “Board”) recently filed its fourth complaint (since March 2011) against Care Realty and Healthbridge Management, the owner and operator of several Connecticut nursing homes.  The Board’s three prior complaints against Care Realty had included allegations of unilateral changes to work hours, benefit eligibility requirements, holiday and vacation benefits, subcontracting of employees, and allegedly unlawful solicitation policies.  The Board’s latest complaint, filed on February 29, 2012, alleges that the nursing home violated the National Labor Relations Act when it: (1) engaged in bargaining proposals that the Board views as predictably unacceptable to the union; (2) refused to engage in reasoned discussion of its proposals with the union; (3) threatened to lock out bargaining unit employees; and (4) unlawfully locked out unionized employees.

These complaints, all filed within the span of one year, highlight the Board’s new, and aggressive, stance against healthcare employers.  Indeed, through its decision- and rule-making powers, the Board has drastically altered the playing field in favor of unions within the past year alone.  For example, recent Board actions will shorten the timeframe for elections.  Additionally, the Board has liberalized the definition of an appropriate bargaining unit, which will significantly facilitate union organizing capabilities and limit an employer’s ability to challenge the union’s proposed bargaining unit.  In fact, healthcare unions will now be able to “cherry pick” disgruntled employees to organize, rather than having to win an election from a broad cross-section of employees.  Moreover, on April 30, 2012, all employers will be required to post a notice informing employees of their right to join unions.  The Board is also considering new solicitation rules that will permit union organizers greater access to employers’ private property.

Healthcare industry employers should take heed of these recent developments and consider implementing the following important changes to avoid union organizing campaigns and/or unfair labor practice charges:

  •  Train managers to recognize the signs of union organizing, to understand the “do’s and don’t’s” of communicating with employees about unions, and to be aware that their actions could potentially result in an unfair labor practice charge.
  • Review and revise policies on solicitation and communications.
  • Ensure that hiring processes are designed to avoid unwittingly hiring union salts.
  • Develop a comprehensive labor strategy to enable swift and effective reactions to an organizing drive or a charge.