New NLRB Election Rule May Increase Union Activity

Hospitals and health systems should be prepared to respond as necessary to a new NLRB rule that puts employers at a disadvantage.

A National Labor Relations Board (NLRB) rule that went into effect on April 14 will severely disadvantage employers, including hospitals, according to a well-respected labor lawyer.

G. Roger King, employment counsel at the HR Policy Association, an advocacy group for chief human resource officers of major companies and hospitals in the country, says the so-called “ambush elections” rule effectively shortens the union election process, makes it more difficult for employers to counter a union organizing campaign, and could be costly if not followed properly.

In a nutshell, the new rule includes the following provisions:

• Permits election petitions, election notices, and voter lists to be sent electronically
• Shortens the time for election campaigns from the current average of a little more than six weeks to as few as 14 days
• Limits the amount of time employers have to counter unions’ claims
• Requires employers for the first time to furnish within two business days the e-mail addresses, cell phone numbers, and home telephone numbers (if available) of employees eligible to vote in the proposed election
• Requires employers to declare all their legal positions the day before hearings, which may be as soon as eight days after unions’ petitions for election are filed
• Limits preliminary litigation of voter eligibility issues

Understanding Employer Opposition

Many employer groups, including the American Hospital Association (AHA) and two of its affiliates—the American Organization of Nurse Executives (AONE) and the American Society of Healthcare Human Resources Administration (ASHHRA)—have risen in opposition. In a Feb. 25 letter to Senator Lamar Alexander, chair of the Senate Committee on Health, Education, Labor and Pensions, a coalition of more than 600 employer associations urged support of a congressional resolution to nullify the rule.

The Coalition for a Democratic Workplace, an organization representing employer trade associations including the AHA, called the rule “nothing more than the board’s attempt to placate organized labor” and said it would deny employees access to critical information about unions, trample on employee privacy rights, and strip employers of due process.

“Given that union organizers typically lobby employees for months outside the workplace without an employer’s knowledge, these ‘ambush’ elections would often result in employees receiving only half the story,” the coalition asserted. An election period of at least 30 days is necessary to assure that employees are fully informed, they said, adding that in many cases employers will not have enough time to secure legal counsel under the shortened procedures.

Responding to the New Election Rule

King, who represented many hospitals and health systems prior to joining the HR Policy Association, says that upheaval in the economy generally and in the hospital sector specifically has led to the recent increase in union activity. “In times of uncertainty, employees may view union representation as a potential option to resolve workplace issues. The NLRB’s new election rule may provide considerable assistance to unions in their organizing efforts,” says King.

He points out that while union organizing can be disruptive and costly in any organization, it is especially troublesome in health care if patient care suffers. “We must not let possible disputes between employees and management affect the quality of care.”

King recommends that healthcare employers undertake certain steps in light of the new NLRB rule. These include the following:

Seek legal expertise. Establish and maintain relationships with outside advisers who have expertise in labor-relations law. Many times, these advisers will not be the same individuals or firms that handle day-to-day employment issues.

Identify employees’ and unions’ points of view. Educate key management representatives on union activities, determine the reasons that unions appeal to employees, and make genuine efforts to see their points of view. “You don’t have to agree with their agenda, but you need to understand what it is,” King says.

Evaluate compensation and benefits. Consistent with the antitrust laws, monitor compensation and benefits trends in your market service area to assure that they are not out of line.

Identify supervisors. Determine which employees are considered “supervisors” and provide them with training regarding how their roles differ from those of other employees under the labor laws.

Develop responses. In advance, prepare communication materials to respond to potential union organizing attempts and identify key management representatives responsible for disseminating such communications.

Using Legal Strategies

King says there are also certain legal steps that hospital leaders should consider.

Understand the new rule. Human resources, compliance, and legal departments must be made aware of the regulation’s implications and the steps to be taken if petitions for union certification are received. “The new rule contains a number of potential procedural landmines,” King says.

Have legal counsel in place. As mentioned above, the short time span for responding to union activity under the new rule means that hospital leaders should establish relationships with experienced labor counsel before any union actions occur. For example, if an election petition is filed under the new rule, hospital leaders should consult with counsel regarding whether to challenge the new rule in the “statement of position” that must be filed as early as eight days before the pre-election hearing. If such a challenge is not filed properly, the hospital may be precluded from making that argument in any subsequent litigation phase of the proceedings.

Be prepared to provide employee information. The new rule requires that a list be available of the full names, work locations, shifts, job classifications, and contact information—including home addresses, available personal email addresses, and available home and personal cell phone numbers—of all employees who are eligible to vote in elections. The rule requires that this information be available within two business days after elections are agreed to or directed by NLRB regional directors. Failure to file this voter information on time could cause election results to be overturned.

Raise legal issues early. If there are to be hearings concerning whether to hold elections, raise all legal issues in prehearing statements of position. Failure to do so may preclude hospitals from raising those issues both at hearings and in subsequent litigation.

Prepare “bench briefs.” The new rule generally prohibits parties from filing a post-hearing brief. Under the old procedure, briefs were regularly filed within seven to ten days after the conclusion of hearings. In response to the new rule, hospital leaders should instruct counsel, if possible, to prepare bench briefs and file them prior to conclusion of hearings. Such briefs could be of great assistance to hospitals in educating NLRB regional offices about the merits of hospitals’ positions with respect to voting unit issues.

Review policies. Counsel should review hospitals’ solicitation, distribution, and access policies to make certain such policies are lawful under recent NLRB rulings. Because unions often use off-duty employees to further their organizing campaigns, particular attention should be given to policies and procedures regarding employees’ access to the workplace during their off-duty hours.

Working with Unions

King recommends a number of strategies to work with unions if they are present in the workplace:

Foster cooperation. Find common causes and issues to discuss with union leadership and work together to solve budding problems. For example, consider conducting joint labor-management cooperative training sessions to minimize work disputes.

Consider the use of mediation. This option, including the incorporation of such procedures into labor contracts, can avoid costly and protracted arbitration and litigation.

Develop relationships. Have frontline supervisors and human resources representations establish working relationships with union stewards and maintain open lines of communications with such individuals to prevent small issues from becoming major confrontations.

Looking to the Future

Various organizations, including AHA, have filed legal challenges to the new election rule. Congress is also considering riders to various appropriation bills that would prohibit the NLRB from expending funds to implement the new rule. However, it may be some time before questions about the validity of the rule are resolved. Therefore, in the interim, employers should become well acquainted with this regulation and be prepared to respond expeditiously to union organizing activity.

See related tool: Compliance Checklist for the “Ambush Election” Rule

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J. Stuart Showalter, JD, MFS, is a contributing editor for HFMA.

Interviewed for this article: G. Roger King is senior labor and employment counsel for the HR Policy Association, Washington, DC.

Discussion Starters

Forum members: What do you think? Please share your thoughts in the comments section below.

• Are you planning to make any changes to your labor relations policies in response to the NLRB’s new rule?
• Has your organization implemented any strategies that have been helpful in managing union relationships?