With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

Ever since 1974, when the NLRB (“Board”) first took jurisdiction over health care institutions, the Board has paid particular attention to the impact of union organizing on the delivery of healthcare in this industry in general  and of acute care hospitals in particular.  When the Act was first amended in 1974, Congress stated its objective at that time was to avoid a “proliferation of bargaining units” as one method to limit the inevitable disruption created by numerous elections and negotiations while at the same time balancing employee’s opportunity to exercise its Section 7 rights to organize and collectively bargain.

Consistent with this goal, in 1987, the Board instituted a Rulemaking Procedure to streamline the organizing and collective bargaining process in the Health Care Industry and instituted the Health Care Rule, 29 C.F.R. Sect. 130, which sets forth the 8 appropriate units for acute care hospitals.

Since then, the original goal of “wall to wall” units and “non-proliferation” of bargaining units in the healthcare industry have continued to deteriorate.  In 2011, for example, the Board, reversing years of precedent, held that a union could organize unrepresented residual employees of an existing bargaining unit in a nursing home.  Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011).

Most recently, Region 13 (Chicago, Illinois) of the Board has further extended a union’s ability to organize residual unrepresented units of employees in an existing non-professional bargaining unit to Acute Care Hospitals.  The Region ruled that the Health Care Rule did not prevent it from directing a self determination election in each of four voting groups to determine whether to add these sub-units of unrepresented non-professional employees to an existing non-conforming unit (i.e. not one of the eight units identified in the Health Care Rule).  Rush University Medical Center and Local 743 International Brotherhood of Teamsters, (13-RC-143495, 13-RC-143497; 13-RC-143510).  (February 23, 2014).

Each of the elections would inevitably follow separate campaigns, and, if successful, would generate additional collective bargaining negotiations dealing with these units of employees.  On March 9, 2015, Rush University Medical Center filed a Request for Review of the Region’s Decision and Direction of Election.

Background

Rush is an acute care teaching hospital.  Since 1967, the Union has represented a unit primarily of non-professional employees.  This bargaining unit has been subject to several collective bargaining agreements (“CBA”).  The current CBA expires in 2016.

Prior to the most recent petition, the Union tried unsuccessfully to organize a wall-to-wall bargaining unit of all non-professional employees. After two failed attempts, it instituted a new approach in 2014 by seeking to represent a single job classification and won the election relying on a decision which held that even an acute care hospital did not have to conform to the Health Care Rule in allowing self-determination elections to add unrepresented employees to an existing non-conforming unit that pre-dated the Board’s Health Care Rule.  St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011).  In doing so, the Board also rejected Rush’s position that Specialty Healthcare did not apply to acute care hospitals under these circumstances.  On August 27, 2014, in an unpublished Order, the Board denied Rush’s Request to Review this Decision and Direction of Election (13-RC-132042)  In a footnote, however, Members Miscimarra and Johnson indicated that they would have granted review for the sole purpose of allowing the Board to review the St. Vincent Decision.  Thereafter, the Union won the election.  After Rush refused to recognize this consolidated unit, the Board ruled that Rush had unlawfully refused to bargain with the Union.  See the Board’s decision and Order entered on February 27, 2015.  (Case 13-CA-139088, 362 N.L.R.B. No. 23.)  On March 9, 2005, Rush filed a Petition for Review in the Court of Appeals for the District of Columbia.  Rush University Medical Center and National Labor Relations Boards, No. 15-1050 (CA DC, March 9, 2015).

A week after the election that ultimately led to Rush’s Petition for Review, the Union attempted to organize additional selected job classifications to the same unit.  The Regional Director of Region 13 dismissed that petition on the grounds that the petition for employees were not an “identifiable, distinct segment.”

Three weeks later, the Union filed three additional petitions with the Regional Director.  Thereafter, the Regional Director granted that petition and issued its Decision and Direction of Election in Rush University Medical Center Decision and Direction of Election decided on February 23rd, 2015.  (Cases 13-RC-143495; 13-RC-143497; 13-RC-143510).

While the Petition for Review of the Refusal to Bargaining Order is pending before the DC Circuit, we want to address the February 23rd Decision and Direction of Election, issued by Region 13 which involves the same bargaining unit, covering many of the same issues. The Region’s February 23rd Decision and Direction of Elections may eventually become part of that Review before the DC Circuit.

Rush University Medical Center Decision and Direction of Election

In the three petitions, the Union sought three voting groups from parts of an unrepresented group of employees to determine if they should be included in an existing non-conforming bargaining unit.  The Union argued that each of the groups was sufficiently identifiable, distinguishable and distinct so as to constitute three appropriate voting groups.  Rush argued that the only appropriate voting group that has a community of interest with the existing represented bargaining unit was the entire residual group of unrepresented non-professional employees.  In short, Rush said that one election, not several, was consistent with the purpose of  the Health Rule which was to streamline the process and minimize disruption to health care in the hospital.

In its Decision and Direction of Election, the Regional Director gave the Union more than it requested by ordering four elections, three of which were not even units that the Union sought.

The Regional Director rejected Rush’s argument that Board regulations mandate that the Health Care Rule should not apply to acute care hospitals.  Rush’s argument was based on Section C of the Health Care Rule which states that, where there are non-conforming units in acute care hospitals and a petition is filed seeking additional units, the Board is mandated to find appropriate units that comport insofar as practicable with the 8 units set forth in the Health Care Rule.  (29 C.F.R., Section 130 et al.)

Conclusion

By refusing to order an election in a wall-to-wall unit, which covered about 67 of the 680 unrepresented non-professional employees at the Hospital, the Region continues to create an environment of unending elections.  The Region’s Decision follows the same rationale as the prior petition that is now pending review by the DC Circuit Board.  The current approach seems inconsistent with the Board’s long held view, supported by Congress, that acute care hospitals are entitled to a special protected status which was meant to streamline the organizing and collective bargaining in acute care hospitals and to minimize disruption that inevitably results in numerous campaigns.

What makes these matters more troubling is that, with the adoption of the impending rules changes regarding “quickie” elections, set to take effect on April 14, 2015, there will be very limited opportunity to review voter eligibility issues.

Both the DC Circuit’s decision and the outcome of Region 13’s most recent Decision and Direction of Election are very important to follow, since if the Board’s position is applicable it will result in sweeping changes to union strategies in organizing acute care hospitals and to the application of the Health Care Rule.  We will keep you posted about the progress of these cases.