Legal Issues In Healthcare Union Campaigns

1
Legal Issues In Healthcare Union Campaigns

• Iowa Healthcare Association
• Embassy Suites Hotel
• Des Moines, Iowa
• March 12, 2004
• Keith Reed
• Seyfarth Shaw LLP
• 55 E. Monroe St., Suite 4200
• Chicago, Illinois 60603
• [phone]

2
Different Jurisdictions for Private and Public
Sector Healthcare Institutions

• Privately owned National Labor Relations Board
  (NLRB)
• Public owned Iowa Public Employment Relations
  Board (PERB)

3
Public Sector Procedures

• 30 required for filing a petition
• Bargaining units tend to be broader than the NLRB
• Election conducted similar to NLRB except PERB
  has authority to order mail ballots
• Home addresses of voters turned over to the union
• One year waiting period before another election
  can be held
• Decertification procedures slightly different
• Negotiations involve fact finding and binding
  arbitration with the selection of final offers
  done by issue
• Contract can be imposed on the parties without
  resort to strike

4
Private Sector Procedures

• Acute care hospitals have eight units
• Service employees
• Business office/clerical
• Technical
• Registered Nurses
• Physicians
• Other professionals
• Skilled maintenance
• Guards

5
Nursing Home/Other Healthcare

• Professional
• Service/Technical/Maintenance
• Business Office/Clerical
• Guards

6
Nursing Home/Other Healthcare (cont)

• Union needs 30 of cards in appropriate unit to
  get NLRB election
• Petition filed with NLRB subregional office in
  Des Moines
• Employers in border states may go to closer
  subregional office in bordering state (e.g.,
  Peoria)
• Election will be held within 42 days if parties
  stipulate to election
• Can extend period if there is a hearing

7
Possible Issues at Hospital Hearing

• Is hospital acute care and thus covered by NLRB
  rulemaking?
• What units should classifications be in?
• Should the unit be single-site or multi-site?
• Are there supervisory issues? (e.g., charge
  nurses)
• Does hospital want them excluded?
• Should agency employees be included?

8
Possible Issues at Hospital Hearing(contd)

• Is the petitioner a labor organization?
• Should ancillary operations, such as childcare
  center, visiting nurse organization, etc. be
  included?
• Should employees working for hospitals joint
  venture projects be included?

9
Dos and Donts Beforeand After Election Petition

• Prior to election, employer cannot threaten,
  interrogate, promise or spy (TIPS)
• For example
• Cant threaten to contract out services if the
  union gets in
• Cant ask employees if theyre attending union
  meetings or passing out authorization cards
• Cant ask employees what management can do to
  keep employees from supporting union
• Cant look at employees e-mail to see if they
  are contacting other employees regarding union
  issues

10

• After the petition is filed, same rules, but more
  conduct is prohibited - - for example
• Cant make decision to give wage increase unless
  it was planned/announced before the petition
• Cant start soliciting grievances unless a
  practice/policy is in existence before petition
• Cant call employees into the office for
  one-on-one discussions about the union
• Cant go to employees homes for the sole purpose
  of discussing the union
• Cant say that bargaining starts from scratch
• Cant change terms and conditions of employment
  unless planned/announced before petition

11
Dos at Any Time Include

• State that youre opposed to unionization
• State why you consider it unnecessary for
  employees to be represented by the union
• Question whether the union has a real interest in
  the welfare of employees or is simply interested
  in obtaining dues money
• Explain the financial obligations the employee
  would have under a union contract
• Point out the risks an employee has during the
  negotiation process

12
Dos(contd)

• Explain the impact of strikes on employees
• Explain the financial statements of the union
• Explain and discuss union rules and regulations
  in its constitution and by-laws
• Discuss unfavorable publicity about the union
• Compare wages and fringes at unionized
  institutions with what the employees have
• Refer to personal experiences of what unions have
  done to hurt employees

13
Legal Type Actions To TakeBefore Union Organizing

• Review no solicitation/no distribution rule and
  make sure its published
• No solicitation of employees on work time or in
  patient care areas
• No distribution of non-work-related material in
  employees work time, in patient care areas, or
  in any work area
• Be careful regarding adjacent hallways/corridors
  and the prohibiting of solicitation of all
  non-employees

14

• Review bulletin board rules and practices
• Avoid any approval by management language
• For business purpose only is legal as long as
  practice follows policy
• If you permit posting of employee announcements
  and personal items for sale, you need to permit
  union-type postings, but you can require all
  information to be on3x5 cards
• Prohibiting off-duty employees from returning to
  premises is very difficult to be valid
• Can prohibit non-employees from soliciting on the
  premises

15

• Encourage policy and practice of solicitation of
  grievances and discussion between employees and
  supervisors as to how the jobs and terms and
  conditions of employment can be better
• Review employee committees for effectiveness and
  whether they are an obvious violation of
  Electromation rule
• Committee is labor organization if
• employees participate
• a committee deals with the employer
• the dealings concern working conditions or other
  employment matters, and
• the committee is representing employees
• Illegal domination or interference may be found
  based on the employers role in creating the
  entity

16
Other Legal PrinciplesTo Review

• Review use of agency employees and possibility of
  their inclusion in union vote
• Review application of Weingarten/Epilepsy cases,
  which give employee the right to ask for the
  presence of a co-worker in any meeting in which
  the employee reasonably believes that such
  meeting may lead to his/her discipline

17

• Managers Should Be Aware of Concerted Activity
  Concept
• Two or more employees can withdraw service or
  take other actions over terms and conditions of
  employment without being terminated
• Individual employee also protected if the action
  engaged in with or on the authority of other
  employees and not solely by or on behalf of the
  employee himself
• Lab employees protected when walking off job for
  two hours due to dissatisfaction with terms and
  conditions of employment
• Employees were protected who wrote, signed and
  sent a letter threatening a work stoppage with
  the object of influencing the selection of
  managers

18

• Nurse was not protected who made false and
  disparaging comments regarding the hospital and
  that staff shortages jeopardized the health of
  patients
• Actions not protected if employees fail to take
  reasonable precautions to protect the employers
  plant, equipment or products from foreseeable
  eminent danger due to sudden cessation of work
• Review policy regarding the wearing of union
  buttons
• Check employer policy on employees using e-mail
  for communication of non-work-related materials

19

• Review employee handbook language for language
  that would chill union activity
• Requiring employees to keep information about
  wages, terms and conditions and discipline
  confidential
• Requiring employees to discuss problems only with
  their immediate supervisor
• Prohibiting employees from making false
  statements, misrepresentations of a material
  fact in attempting to obtain a benefit or
  advantage, or from disclosing paychecks
• Requiring employees to notify supervisors if they
  are being coerced or harassed to join a union
• Prohibiting employees from using lockers for
  soliciting other employees
• Prohibiting disrespectful conduct towards
  supervision or fellow employees

20

• Unions will file unfair labor practice charges to
  show employees that they need protection from
  illegal acts of the employer

21
Proactive Pre-Campaign Considerations

• Train managers and supervisors about current
  union activity why employees want unions
  supervisory dos and donts and signs of union
  activity
• Evaluate supervisory and other issues regarding
  potential bargaining units
• Monitor union elections/activity at hospitals and
  other healthcare facilities and evaluate
  experiences from union activity at other
  employers
• Train supervisors to be better listeners and how
  to respond to employee questions, concerns and
  complaints
• Review issues concerning union salts and/or
  outside union contractors
• Review employee handbooks and policies
• Have a practice/policy regarding solicitation of
  complaints/grievances