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NLRB issues final rule on union elections; Chamber/CDW sue

The National Labor Relations Board on Dec. 21 issued for publication in the Dec. 22 Federal Register a final rule amending its rules and regulations for filing and processing petitions for union representation. The rule takes effect on April 30.

On Dec. 20, the U.S. Chamber of Commerce’s National Chamber Litigation Center and the Coalition for a Democratic Workplace filed a federal lawsuit claiming the final rule violates the National Labor Relations Act, Administrative Procedure Act, Regulatory Flexibility Act, and free speech and due process constitutional rights. According to the NCLC, “The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.”

The American Hospital Association, a member of CDW, is reviewing the rule and will have more information for members in January. In November, the NLRB voted to include in the rule provisions giving the hearing officer authority to limit the pre-election hearing to matters relevant to the question of whether an election should be held and to decide whether to permit briefing of pre-election issues; end the practice of delaying the scheduling of elections to permit time for a pre-election appeal; consolidate pre- and post-hearing appeals into a single post-election procedure and eliminate appeals of issues that become moot because of the election result; and give the Board discretion to hear and decide any appeals to the election process.

NLRB votes to finalize limited speedy union election rule

The National Labor Relations Board on Nov. 30 voted 2-1 to proceed with drafting for Federal Register publication a scaled down version of its June proposed rule to speed up union elections. Characterized by the Board as reducing unnecessary litigation in election cases, the forthcoming rule would include six procedural amendments.

The changes would give the hearing officer authority to limit the pre-election hearing to matters relevant to the question of whether an election should be held and to decide whether to permit briefing of pre-election issues; end the practice of delaying the scheduling of elections to permit time for a pre-election appeal; consolidate pre- and post-hearing appeals into a single post-election procedure and eliminate appeals of issues that become moot because of the election result; and give the Board discretion to hear and decide any appeals to the election process. The Board indicated that no final rule would be issued before the regulatory text is finalized, circulated among Board members and approved by a majority of them.

The Board also said that it would continue to deliberate on the remainder of the provisions included in its June proposed rulemaking notice, including requirements for electronic filing of petitions; that hearings be set for seven days after service of the hearing notice; filing of a statement of position; inclusion of email addresses and phone numbers in the voter list; and changing the period for filing the voter list from seven to two work days.

[ via AHA News Now ]

House passes bill to restore NLRA protections

The House of Representatives on Nov. 30 voted 235-188 to approve the Workforce Democracy and Fairness Act (H.R. 3094), legislation that would amend the National Labor Relations Act with respect to hearings for union representation and the timing of union elections. During debate on the bill, House Committee on Education and the Workforce Chairman John Kline (R-MN) cited a letter of support for the legislation by the Coalition for a Democratic Workplace, a group of more than 600 organizations including the American Hospital Association.

The bill would counter recent action of the NLRB by ensuring certain employer protections remain in effect, and reverse the Board's recent decision in Specialty Healthcare. In March, the AHA joined a friend-of-the-court brief filed by CDW and the HR Policy Association, which objects to the Board's use of the case to reconsider the validity of unit appropriateness standards "as a general matter."

The AHA and its American Society for Healthcare Human Resources Administration affiliate also filed a similar brief in the case.

House committee passes bill to restore NLRA protections

The House Committee on Education and the Workforce on Oct. 26 voted 23-16 to approve the Workforce Democracy and Fairness Act (H.R. 3094), legislation that would amend the National Labor Relations Act with respect to hearings for union representation and the timing of union elections. The American Hospital Association-supported bill would block the National Labor Relations Board from advancing a proposed rule that would change the process for filing and processing petitions for union representation of employees, essentially speeding up the time between filing a petition and holding an election.

The AHA and its American Organization of Nurse Executives subsidiary and American Society for Healthcare Human Resources Administration affiliate oppose the rule. The legislation also would reverse the Board's recent decision in Specialty Healthcare.

In March, The AHA and ASHHRA filed a brief in the case opposing any modifications to the procedures and standards for determining appropriate bargaining units that could erect obstacles to the integrated delivery of acute and nonacute care. The AHA also joined a similar friend-of-the-court brief filed by the Coalition for a Democratic Workplace and the HR Policy Association.

Coalition urges Congress to pass bill blocking recent NLRB actions

The Coalition for a Democratic Workplace, a group of more than 600 organizations including the American Hospital Association, on Oct. 12 urged the House Committee on Education and the Workforce to quickly pass the Workforce Democracy and Fairness Act (H.R. 3094) to address recent “economically crippling actions” of the National Labor Relations Board. In a letter submitted to the committee for a hearing on the bill, the coalition said labor unions and others who failed to win support for the Employee Free Choice Act “are now coordinating with the Board and the Department of Labor in what appears to be an all-out attack on job-creators and an effort to enact EFCA through administrative rulings and regulations.”

The bill would block the Board from advancing a proposed rule “to effectively deny employees’ access to critical information about unions,” the letter notes, and would reverse the Board’s recent decision in Specialty Healthcare. In March, the AHA joined a friend-of-the-court brief filed by CDW and the HR Policy Association, which objects to the Board's use of the case to reconsider the validity of unit appropriateness standards "as a general matter."

The AHA and its American Society for Healthcare Human Resources Administration affiliate also filed a similar brief in the case.

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AHA and affiliates urge NLRB to revise rulemaking process

A better and fairer set of proposed changes for union representation elections would result from a process that allows for advance and informative dialogue among all interested parties before publication of the rule, the American Hospital Association and its American Society for Healthcare Human Resources Association and American Organization of Nurse Executives told the National Labor Relations Board on Aug. 22.

“[I]n its current rulemaking, the Board has engaged in a process that is unwarranted, unprecedented and contrary to the current administration’s rulemaking goals by denying an opportunity for full and frank dialogue on the proposal prior to the issuance of a Notice,” the organizations wrote. The rule seeks to amend the entire election process, from petition to certification, including deferring the resolution of most voter eligibility questions until after an election, consolidating all election-related appeals into a single post-election process, and making NLRB review of post-election decisions discretionary rather than mandatory, the letter notes.

As proposed by the board, the organizations said the rule "places unnecessary burdens on the nation’s health care employers; imposes unachievable timelines in part because of the frequency of elections in the health care field and the unusually large size of health care units; and extends disputes for an undefined period of time allowing related labor tension and strife to threaten the peaceful and tranquil patient care environment essential to every hospital’s delivery of care to its patients.” They urge the NLRB to refrain from promulgating the rule entirely or to modify it substantially.

Rule would expand employers' disclosures about union organizing communications

The Department of Labor on June 21 published a proposed rule that would expand the obligations of employers and labor relations consultants to disclose any agreements or arrangements to persuade employees about the right to organize and bargain collectively. By defining "advice" exclusively as "an oral or written recommendation regarding a decision or a course of conduct," the proposal would narrow significantly the range of activities exempt from reporting under the rule.

Only when a consultant exclusively counsels employers on what they may lawfully say to their employees, ensures compliance with the law, or provides guidance on National Labor Relations Board practice or precedent would reporting not be required. However, reporting would be required for a wide range of activities, the direct or indirect object of which is to persuade employees, including a consultant's preparation or provision of a persuasive script, letter, videotape or other material for use by an employer in communicating with employees, or a consultant's revision of the employer's material or communications to enhance persuasiveness.

"The definition of what triggers reporting in the proposed rule is so confusingly broad that it could include the American Hospital Association's distributing general information and other resources to help our hospital members educate their boards, managers and employees about union organizing," said AHA Assistant General Counsel Lawrence Hughes. DOL will accept comments on the proposed rule until Aug. 22.

NLRB proposes process to speed up union elections

The National Labor Relations Board on June 22 published a proposed rule that would change the process for filing and processing petitions for union representation of employees, essentially speeding up the time between filing a petition and holding an election. The proposed rule would defer resolution of most voter eligibility questions until after the election, consolidate all election-related appeals into a single post-election process, and make board review of post-election decisions discretionary rather than mandatory, among other changes.

"With the demise of the Employee Free Choice Act in Congress, the NLRB seems determined to create an environment that would favor unions, rushing ahead to hold elections without ensuring that employees have enough information to make informed choices," said American Hospital Association President and CEO Rich Umbdenstock. The AHA plans to comment on the proposed rule by the Aug. 22 deadline.

The NLRB indicates that it will hold a public hearing in Washington, D.C., on July 18-19, to get feedback from interested parties on the proposed amendments and other Board case handling procedures.

Coalition: NLRB lacks authority to require proposed notice

The American Hospital Association and its American Society for Healthcare Human Resources Administration on Feb. 22 joined other members of the Coalition for a Democratic Workplace to submit comments on a proposed National Labor Relations Board rule that would require 6 million employers covered by the National Labor Relations Act to post a notice describing employee rights under the Act. “This is a massive and unprecedented assertion of the Board’s jurisdiction in millions of workplaces where employees have not elected to be represented by a union and where there is no allegation of any unfair labor practice,” the letter states.

Among other concerns, the coalition notes that the proposed rule would impose significant penalties for failure to post the notice, which under the proposed rule would constitute an independent unfair labor practice. “The Board simply does not have authority to impose these obligations and penalties against an employer when there has been no finding (or even an allegation) of an unfair labor practice,” the letter said.

House hearing examines NLRB policy trends

At a House subcommittee hearing Feb. 11 on emerging trends at the National Labor Relations Board, several witnesses raised concerns that the board is engaged in an activist labor-oriented agenda. In written testimony to the House Education and the Workforce Committee's Subcommittee on Health, Employment, Labor and Pensions, Roger King, who represents health care employers as a partner in the Jones Day law firm, cited several NLRB decisions "that either overturn precedent, substantially change the direction of the law under the [National Labor Relations Act], or change the direction of the Board through either [Administrative Procedure Act] rulemaking or rulemaking through case law adjudication."

King is a member of the American Hospital Association's American Society of Healthcare Human Resources Administration. Also expressing concerns about recent actions by the board and its general counsel were Philip Miscimarra, a partner at Morgan, Lewis & Bockius, and Arthur Rosenfeld, former general counsel for the board.

Committee Chairman Phil Roe (R-TN) and several witnesses also expressed support for federal legislation to protect employees' right to a secret ballot in union organizing elections. "I think we need to put that into statute," Roe said. Also testifying was Cynthia Estlund, a professor at New York University School of Law, who maintained that the board's recent actions are within its authority.