Health Law Update

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As has been reported in <a href="http://www.bakerlaw.com/EllenShadurGross#publications">previous editions</a> of the Health Law Update, National Labor Relations Board (NLRB)-watching now is a required activity for all employers—union and nonunion alike. On February 25, 2014, NLRB General Counsel Richard Griffin published a list of substantive questions that must be submitted to the Division of Advice in Washington, D.C., before Regional Directors may make decisions. (See Memorandum GC-14-01.) The clear, but unstated purpose of this directive is to ensure that determinations by Regional Offices that are deemed too favorable to employers will be reviewed in Washington, D.C.

Clearly, all eyes will continue to be glued to the NLRB for some time to come. Here are some things that healthcare employers should expect to see in the coming months.
<ul>
	<li>Erosion of long-standing Supreme Court precedent (see NLRB v. Burns International Security Services, 406 U.S. 272 (1972)) which obviates the duty to assume an existing collective bargaining agreement where the employer indicates, through its actions, that it does not intend to assume the contract. (See dissents by Members Fanning and Panello in Spruce Up, 209 NLRB 194, 199-200; concurrence by Chairman Gould in Canteen Co., 317 NLRB 1052, 1054, placing emphasis on employer's intent and not whether employees accept offers of employment.)</li>
	<li>Establishment of the rights of unrepresented employees to representation in predisciplinary investigatory meetings. The NLRB may overrule the 2004 decision in IBM Corp., 341 NLRB 1288 (2004), in which the NLRB determined that employees do not enjoy Weingarten rights in an unrepresented workplace.</li>
	<li>Greater difficulty obtaining postarbitral deferral of unfair labor practice charges in cases involving interference with employee rights to engage in protected concerted activity or retaliation for engaging in protected activity, under Sections 8(a)(1) or 8(a)(3) of the National Labor Relations Act, respectively. The NLRB recently has issued a call for amicus briefs on postarbitral deferral, and it seems fairly certain that the ability of employers both to defer unfair practice charges to arbitration and, more importantly, to obtain approval of arbitral awards under the existing and more lenient "repugnancy" standard now is in doubt. (See Spielberg Mfg. Co., 112 NLRB 1080 (1955) and Olin Corp., 268 NLRB 573 (1984).)</li>
	<li>More scrutiny of decisions to relocate facilities where the decisions to relocate are not based on labor costs. Currently, under Dubuque Packing, these decisions are not subject to a duty to bargain. The General Counsel wants to exert greater control over cases where a union alleges that the employer failed to furnish adequate information to determine whether Dubuque Packing applies.</li>
	<li>Continued pressure on efforts to enforce mandatory preemployment waivers of class actions under D.R. Horton.</li>
	<li>Review of decisions to impose discipline due to "exigent circumstances" after a successful union campaign but before the ratification of a collective bargaining agreement. (See Alan Ritchey, 359 NLRB No. 40 (2012).)</li>
</ul>
Changes in any one of these areas could dramatically change the labor landscape for healthcare employers. Of particular concern seems to be the change in bargaining obligations when employers acquire existing hospitals or skilled nursing facilities. It is often the case that healthcare facilities are for sale because they are not profitable, and they can become profitable only if the cost of existing labor agreements is brought under control.

Of similar concern would be limits on the ability to discipline employees in the highly regulated field of healthcare. Employers may find themselves having to allow for representation at predisciplinary meetings to investigate misconduct, even where there is no union. And in the case where a union is certified as the exclusive representative but does not have a first contract, the employer may be unable to mete out discipline for serious infractions, such as data breaches or violations of patient privacy, or sentinel events.

Keep looking here for updates on these issues as they develop. In the meantime, employers should consult with labor relations professionals to make sure that they remain compliant with the latest NLRB decisions.

That Persnickety and Persistent NLRB