west virginia healthcare human resources association developments in healthcare and employment law...

West Virginia Healthcare Human Resources Association

Developments in Healthcare and Employment Lawby G. Roger King, Partner

Jones Day

614-281-3874; [email protected]

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HEALTHCARE HUMAN RESOURCE CHECKLIST FOR 2011

Review Wage and Hour Compliance Monitor Initiatives from the Office of Federal Contract

Compliance Programs (OFCCP) Review Equal Opportunity Compliance Monitor NLRB Rulemaking and Litigation Review Unionization Vulnerability Review Independent Contractor Classification

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HEALTHCARE HUMAN RESOURCE CHECKLIST FOR 2011….

Align Compensation Programs with Future Hospital Revenue Sources

Review Whistleblower Investigations and Response to Procedures

Implement a Social Media Policy

American Hospital Association Health Care Labor Report, January/February 2011

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THE REGULATORY FACTOR

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The Traditional Corporate Campaign

• An organized assault involving economic, political, legal and psychological warfare on a company.

• Attack legitimacy and credibility of targeted company.

“Your main job is to bait an opponent into reacting. The enemy, properly goaded and guided in his reaction will be your major strength.” -- Union organizer Saul Alinsky

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Corporate Campaign Pressure Points

The Battleground

UNIONS COMPANYEmployees

Financial Community

Religious Community

Consumers

Media/Opinion Makers

Legislators

Regulators/Legal Community

Local Physicians

Public Opinion

Corporate Campaign Pressure Points

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Key Corporate Campaign Issues

Pay and BenefitsEmployee VoiceWorker dignityExecutive compensation Profitability

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Executive Compensation

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Religious/Community Action Groups

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THE NEW REGULATORY/CORPORATE UNION CAMPAIGN

• Organized labor’s substantial spending in federal/state elections.

• What is the “return on investment” for such substantial campaign contributions?

• The failure of organized labor’s legislative agenda—Employee Free Choice Act, etc.

• Influence in the regulatory process.

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THE NEW REGULATORY/CORPORATE UNION CAMPAIGN….

• Key regulatory departments/agencies• U.S. Department of Labor

• Wage and Hour Division• Office of Federal Contract Compliance Programs

(OFCCP)• Occupational Safety and Health Administration

(OSHA)

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• Labor Management Reporting Disclosure Act (LMRDA)

• Independent Contractor Misclassification Task Force

• Internal Revenue Service (IRS)• Equal Employment Opportunity Commission

(EEOC)

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• National Labor Relations Board (NLRB)

• Other federal/state agencies

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DEPARTMENT OF LABOR – SOLIS

• Criticized the Bush administration for “going after unions” • “Labor's not the problem in this country;

labor is the solution,” • Potential rollback of favorable DOL

regulations and opinion letters from last 8 years• “So much bad has been done in the last

eight years”• “Any good semblance of investigation

and monitoring has been eroded over the last eight years”

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DEPARTMENT OF LABOR – SOLIS

• Has added investigators to Wage/Hour Division and OSHA• Increased Occupational Safety and

Health Administration investigations

• “The Department of Labor is back in the enforcement business.” • Adding 670 investigators and returning

to enforcement levels not seen since 2001.

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U.S. DOL—Wage and Hour Division

• Implementation of the new “Bridge to Justice Program”—American Bar Association partnership.

• Continuing problem areas:• Employees working off the clock• Meal break interruption• Auto deduct timekeeping systems• Aggregate various sites work week hours

• Potential implementation of the “Right To Know Under The FLSA” Program.

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DOL I-Phone Wage & Hour AP• The next time you see your employees entering data on

an iPhone, be thankful if they're only texting their friends.• Instead, your employees may be creating their own

records of the hours that they will claim they worked. On May 9, 2011, DOL's Wage and Hour Division (WHD) announced its first “smartphone application” (89 DLR A-2, 5/9/11). Although the current version works only with the iPhone and the iPod Touch, DOL promises updated versions that will work on Blackberry and Android-based smartphones, as well as updated functionality that will allow for the tracking of more extensive data, including tip income, commissions, bonuses, deductions from pay, holiday pay, shift differentials, and paid time off. …BNA Daily Labor Report dated May 31, 2011

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The Thorny Problem of BlackBerrys

• Law360, New York (April 7, 2011) -- BlackBerrys, iPhones and similar mobile devices enabling users to check email, surf the web and watch videos are as ubiquitous these days as the home computer. They have been a boon to productivity, allowing businesses to be available 24/7 to clients and customers, and enabling near-constant (and instant) contact with employees to manage after-work-hours issues that arise.

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• But there is one thorn that employers may have overlooked in their zeal to harness the enhanced productivity that these mobile devices allow: the requirement that nonexempt employees be paid for all work done for the employer, whether at the office during the day or after hours. …

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• That thorn was stuck in the side of at least three employers in the past few years in the form of class action lawsuits: AT&T Inc., T-Mobile USA Inc. and CB Richard Ellis Inc. were each sued by nonexempt employees for failure to pay overtime for time spent checking their email on BlackBerrys and other mobile devices. …

Law360, April 7, 2011

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Office of Federal Contract Compliance Programs (OFCCP)

• Expansion of definition of federal contractor and subcontractor.

• Significant expansion of (inexperienced) staff. • Increased number of full “desk audits”.• Increased emphasis on hiring veterans and

disabled individuals.• Labor rights notice posting informing

employees of their labor law rights, including the right to unionize (E.O. 13496).

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Office of Federal Contract Compliance Programs (OFCCP)….

• Federal contractors cannot recover costs “persuading” employees not to unionize, including labor consultant costs (Executive Order 13494).

• Federal contractors must have a “satisfactory record of integrity and business ethics.”

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• Potential for “high road” contracting policy—preference for federal contractors who exceed federal minimums regarding:• Wages• Benefits• Leave policies• Labor relations• Compliance with labor and other laws

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• Potential use of a “quantified point system” to evaluate contract bidder’s labor record—employer must have minimum score to be eligible to bid.

• More compliance evaluations—federal contractors can expect more comprehensive desk audits, more on-site investigations, more flexibility in defining a class of victims and greater overall oversight—cooperative efforts with the EEOC.

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Hospital That Participates in TRICARE Is Subject to OFCCP Jurisdiction, ALJ Rules

• The Labor Department's Office of Federal Contract Compliance Programs has taken the position that it has jurisdiction over a Florida hospital that provides medical services for a federal contractor that administers a network for TRICARE, the Defense Department's health care program for active and retired military members, the DOL Office of Administrative Law Judges ruled Oct. 18 (OFCCP v. Fla. Hosp. of Orlando, DOL OALJ, No. 2009-OFC-00002, 10/18/10).

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Hospital That Participates in TRICARE Is Subject to OFCCP Jurisdiction, ALJ Rules….

• Granting summary judgment to OFCCP, Administrative Law Judge Jeffrey Tureck held that Florida Hospital of Orlando is a federal subcontractor because it participates in a health care provider network established by Humana Military Healthcare Services Inc., which has a federal contract with DOD's TRICARE Management Activity. Through its agreement with HMHS, Florida

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Hospital That Participates in TRICARE Is Subject to OFCCP Jurisdiction, ALJ Rules….

Hospital provides medical services to TRICARE beneficiaries and thus performs a “portion” of HMHS's obligations under its prime contract with TRICARE, Tureck said. …. BNA, Daily Labor Report dated October 20, 2010

*This ALJ opinion was appealed by the Florida Hospital and it is currently pending before

the U.S. DOL Administrative Review Board.

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Recommendations

• Full audit for government “contracts,” looking out for

• Incorporation by reference

• “Flowdown” clauses in contracts with private parties

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Recommendations….

• Programs already on government’s watch list:

–TRICARE network provider agreements–HMO’s covering federal employees

–Note: Many large HMO programs have enrolled federal employees

–Medicare Parts C & D–(Potentially) PPO’s covering federal

employees

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Recommendations….

• Know in advance what you would do if you received notice of an OFCCP compliance evaluation • OFCCP likely to reactivate cases it was

deferring pending Florida Hospital Administrative Review Board decision and UPMC Federal District Court decision

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Recommendations….

• Organizations preparing first AAP should consider role for counsel in process

• Organizations contemplating becoming a federal contractor should fully understand the ramifications of such decision—more than just drafting an AAP

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Recommendations….

• Organizations choosing to avoid federal contractor status should:• Fully understand current agency position and

weigh its legal options if OFCCP attempts to assert jurisdiction

• Fully understand what internal controls should be in place to prevent inadvertent contractor status from being established

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OSHA

• Expect more inspections, more fines, more willingness to seek criminal prosecutions, more regulation (vs. advisory standards).

• Return of the ergonomic standard?

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Independent Contractor Misclassification

• Multi-governmental department task forces—U.S. DOL, IRS and state agencies.

• Federal grants to fund state enforcement and sharing of investigative information.

• Considerable potential for liability for failure to properly classify, including exposure for contributions for Social Security, Medicare, federal and state income taxes, FICA, FUTA, state Workers’ Compensation and state unemployment insurance premiums.

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Independent Contractor Misclassification….

• Also considerable benefit exposure.• Obama Administration’s FY 2012 budget proposal would

allot $15M for the hiring of new personnel within DOL’s Wage and Hour Division to investigate misclassification and would make available to states $25M in competitive grants to enhance their mechanisms for conducting misclassification audits.

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Exotic Dancer Takes Swing at Club in FLSA Action• Law360, New York (April 7, 2011) -- An exotic dancer at an

Arkansas nightclub filed a class action Wednesday alleging the club's dancers were misclassified as independent contractors in violation of the Fair Labor Standards Act. …

• The suit cites several reasons why the FLSA applies to exotic dancers, including that they are compensated by tips and that their work "does not require invention, imagination or talent in a recognized field of artistic endeavor."

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• They are not independent contractors, the suit claims, because the club exercises control over all aspects of their work and they do not exercise the skill and initiative of a person in business for themselves.

• Being an exotic dancer does not require any specialized training, the suit says, and "the dance skills utilized are commensurate with those exercised by ordinary people who choose to dance at a disco or at a wedding.“

Law360, April 7, 2011

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Stricter Enforcement ofLabor-Management Reporting and

Disclosure Act?• Federal labor law (separate from NLRA) is

enforced by the Department of Labor and requires unions to file public-record disclosures of their receipts and expenditures

• However, law also requires employers to make similar disclosures regarding their payments to third parties relating to union activities

• Violations are subject to potential civil and criminal liability

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New DOL Persuader Rules

• Proposed new rules greatly expand employer reporting under the Labor Management Reporting Disclosure Act (LMRDA) and also greatly expand reporting requirements for attorneys and consultants advising employers.

• All forms of payment by an employer to third-party advisors concerning persuader activity, must be reported and would be publicly available. Such persuader activities include:

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New DOL Persuader Rules….

o Preparation, provision, or revision (to enhance the persuasive message) of persuasive materials such as scripts, letters, audio or videotapes, or electronic or digital media used by the employer to communicate with the employees.

o Establishing anti-union committees composed of employees.

o Planning employee meetings.

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o Creating employer policies and practices designed to prevent organizing.

o Determining the timing and sequence of persuader tactics and strategies.

o Training, coaching, or counseling supervisors and managers on the organizing process.

o Developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness.

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o Conducting seminars or webinars for multiple employers on labor-management relations matters regarding how to persuade employees concerning organizing and bargaining rights (especially if participants are instructed on conducting individual or group employee meetings or provided persuader materials for distribution).

o Educating management about the organizing process.

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o Directing employees to develop and manage the employer’s message.

o Helping businesses avoid union petitions and card signing drives.

o Assisting with contract negotiations.o Developing corporate campaign strategies.o Developing an employee communications program

regarding the organizing process.

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o Providing labor research and communications, including preparation of customized videos, CDs and DVDs with pro-employer messages, and employee and supervisor testimonials.

o Developing plans to respond to a strike and employees’ return to work.

o Planning or conducting individual or group meetings designed to persuade employees.

o Developing a counter-organizing campaign strategy.

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o Training supervisors or employer representatives to conduct individual or group meetings designed to persuade employees.

o Coordinating or directing the activities of supervisors or employer representatives to engage in the persuasion of employees.

o Developing employer personnel policies or practices designed to persuade employees.

o Providing vulnerability assessment.

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o Deciding which employees to target for persuader activities or discipline.

o To the extent that an attorney’s report about the agreement with an employer may disclose privileged communications, for instance where an attorney provides an employer with both legal advice and engages in persuader activities, the privileged matters are protected from disclosure.

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o When a lawyer, however, is engaged in providing both “advice,” and is also engaged in persuader activity while the content of the advice portion of such activity may be shielded by attorney-client privilege, a report nevertheless will be required.

o The law sets forth penalties for employers, consultants, and attorneys who fail to properly report their persuader activities.

o Individuals who willfully violate the law are subject to fines up to $10,000 or imprisonment for up to one year.

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o Individuals who knowingly make false statements or representations about a material fact, or who knowingly fail to disclose a material fact, are subject to fines up to $10,000 or imprisonment for up to one year.

• Comments are due to be filed with the U.S. DOL regarding these new proposed regulations on or before September 22, 2011.

Equal Employment Opportunity Commission

P. David Lopez, General Counsel*Jacqueline A. Berrien, Chair*Stuart J. Ishimaru, CommissionerConstance S. Barker, CommissionerChai Feldblum, Commissioner*Victoria Lipnic, Commissioner*

*President Obama recess appointed on April 21, 2010; Confirmed by the U.S. Senate on December 22, 2010.

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Equal Employment Opportunity Commission….

• Potential rulemaking

• Increased class action litigation

• Employee friendly studies/task forces

• Prohibition on use of criminal background checks

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Equal Employment Opportunity Commission….

• Review of employer’s wellness programs—incentives or penalties?

• Review of use of credit checks for employers

• Equal pay for equal work studies.

• Increased budget—Senate Appropriations Committee’s recent $18m budget increase

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A New National Labor Relations Board

• The National Labor Relations Board (NLRB) is statutorily authorized to have five (5) Members, all of whom are nominated by the President and subject to Senate review and confirmation.

• The NLRB generally functions by utilizing three (3) Member panels to decide cases.

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A New National Labor Relations Board….

• There have been three (3) vacancies on the NLRB for substantial periods of time over the last few years.

• The U.S. Supreme Court, last year in New Process Steel, held that the Board cannot conduct business on a two-member basis.

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The Board in September 2011

Chairman. Mark PearcePearce’s term expires August 27,

2013

Lafe Solomon, Acting General CounselNominated for a 4-year term

Not confirmed, to date, by U.S. Senate

Brian E. HayesHayes’ term expires December 16, 2012

Terence F. Flynn, New Republican Nominee--If confirmed Flynn’s term would expire August 27,

2015

Craig Becker*Recess Appointee—Term will end unless confirmed when Congress

adjourns in 2011, or renominated by the President for a different Board seat—President Obama renominated Mr. Becker on January 26, 2011 for the

remainder of a five-year term.

Former Board Chair, Wilma B. Liebman’s term expired

August 27, 2011

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NLRB Nominee/Craig Becker

Mr. Becker, who was Associate General Counsel to both the AFL-CIO and SEIU, has made the following points in various professional journals:

• Presence of employers in union elections is “anomalous” and they “should neither be parties to nor accorded the rights of candidates in union elections” 1993 Minnesota Law Review • “this could be achieved with almost no alteration to the

statutory framework”• Proposed changes by Mr. Becker included:

• Deny employer role in pre- or post-election hearings• No employer observers in NLRB elections• Elections on “neutral grounds” (incl. mail ballots)• No employer role in unit determinations or union ULPs

– Limit employer role to supervisors and other exempts• No employer captive audience presentations• Employer must live by own solicitation/distribution rules• Allow intermittent strikes

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Fast Forward to December 2011…

Chairman, Mark PearcePearce’s term expires August 27,

2013

Lafe Solomon, Acting General Counsel—Nominated for a 4-year term—not confirmed, to

date, by U.S. SenateNomination could still be pending

Brian E. HayesHayes’ term expires December

16, 2012

Terence F. Flynn, New Republican Nominee--If confirmed Flynn’s term would expire August 27,

2015

Craig Becker*Recess Appointee—Term will end unless

confirmed when Congress adjourns in 2011, or renominated by the President for a

different Board seat—President Obama renominated Mr. Becker on January 26, 2011

for the remainder of a five-year term.

Former Chairman, Wilma B. Liebman’s term expired

August 27, 2011

Pursuant to the Supreme Court’s decision in New Process Steel , 130 S.Ct. 2635, the U.S. Supreme Court held that the National Labor Relations Board cannot function on a two-Member basis.

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THE OBAMA NLRB AGENDA

• Office of General Counsel—Acting General Counsel, Lafe Solomon’s, initiatives.The Boeing Case—Right of unionized employers to

locate their business operations geographically to avoid strikes and other disruptions.

Social Media Cases—Is the social media communication (i) concerted activity, i.e., does it involve more than one employee and (ii) is it “protected?”:

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THE OBAMA NLRB AGENDA….

Does the communication concern wages, hours and terms and conditions of employment?

Does it demean the employer’s products and services?

Do the comments in question pose a direct physical threat to co-workers?

Is the employer’s policy concerning social media too broad and does it convey the impression that

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workers do not have the right to have conversations regarding wages, hours and terms and conditions of employment?

The Board applies its Jefferson Standard case guidelines—“…the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless or maliciously untrue as to lose the Act’s protection.”

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Workers Can't Be Fired For Facebook Gripes: NLRB Judge

• A judge with the National Labor Relations Board rules Friday that a New York nonprofit must rehire five employees who were fired after griping about their jobs on Facebook, a first-of-its-kind decision for the agency.

• Administrative Law Judge Arthur J. Amchan said the employees’ off-hours complaints about their working conditions were protected by the National Labor Relations Act. …Law360, September 6, 2011

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Solicitation, Distribution and Access Cases—(i) does the employer permit non-employees actual or virtual access to its employees and its premises, and (ii) does the employer permit employees to solicit and distribute, on work time, for various outside entities or on behalf of non-employer activities—but yet restrict union activities in the above areas and times?

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Bannering / Picketing

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Sheet Metal Workers v. NLRB

• Court: Union’s conduct “was a combination of street theater and handbilling” and it “had none of the coercive character of picketing.”

• Court: Union representatives “did not physically or verbally interfere with or confront Hospital patrons” and did not “create a symbolic barrier.”

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USE OF LIGHT PROJECTION EQUIPMENT—WHAT’S NEXT?

Carpenters Union’s use of light projection equipment in Fresno, California portraying St. Agnes Medical Center as “St. Agony”

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The Detroit News – Sat., September 27, 2008 Union mascot Scabby Has A Secret

As many Michiganians know, labor unions rarely remain quiet if they're not happy.

On Thursday in New York, a gathering of unionized Northwest Airlines Corp. employees proved that point yet again outside the company's annual shareholders' meeting when they rolled out the ever-fearsome Scabby the Rat, a gigantic rat-shaped balloon used by labor unions since 1990 to protest anti-union activity….

Scabby, who first appeared in the Windy City some 18 years ago, is made by Big Sky Balloons, a Chicago firm specializing in the design and manufacture of bizarre balloons. Scabby's family has grown to include three colors of rats -- black, grey and brown -- along with inflatable skunks, cockroaches, "greedy pigs" and a large, "corporate fat cat" donning a three-piece suit and choking a construction worker.

Embraced by unions for years as an effective piece of street theater, Scabby has a secret: Though Big Sky Balloons has been enjoying sales of around 200 rats a year, the company itself isn't a union shop.

Contributors: Nathan Hurst, Christina Rogers and David Shepardson

Though he's helped unions make their case for years, "Scabby" wasn't made in a union shop.

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Board Bannering Decisions

• The Board majority – Chairman Liebman and Members Becker and Pearce – found that the bannering was not coercive. Member Hayes and former Member Schaumber dissented.

• United Bhd. of Carpenters Local 1506 (Eliason & Knuth), 355 NLRB No. 159 (Aug. 27, 2010); United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010); Southwest Reg'l Ccl. of Carpenters (Carignan Constr.), 355 NLRB No. 216 (Sept. 30, 2010); United Bhd. of Carpenters Local 1506 (Sunstone Hotel Investors), 355 NLRB No. 219 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters, 355 NLRB No. 216 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters (Richie's Installations), 355 NLRB No. 227 (Oct. 7, 2010).

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MANDATORY INFLUENZA PROGRAMS—A UNIONIZED EMPLOYER’S DUTY TO BARGAIN

• The Board, in the Virginia Mason case, 357 NLRB No. 53, on August 23, 2011, in a 3-1 vote with Board Member Brian Hayes dissenting, decided that a health care employer must first engage in bargaining with its union prior to implementing an influenza policy.

• The Board concluded that a hospital does not have a “core entrepreneurial right” to unilaterally implement such a plan.

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MANDATORY INFLUENZA PROGRAMS—A UNIONIZED EMPLOYER’S DUTY TO

BARGAIN….

• The Board Majority overruled an NLRB Administrative Law Judge and concluded that such vaccination programs are not unlike other safety and work rule issues that are subjects of mandatory bargaining between an employer and its union.

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NEW NLRB EMPLOYEE RIGHTS POSTING

• On August 30, 2011, the National Labor Relations Board ("NLRB" or "Board") published a final rule requiring employers subject to the National Labor Relations Act ("NLRA" or "the Act") to post notices informing their employees of their rights under the NLRA. Member Hayes dissented from the final rule.

• The final rule, which will be published in a new part 104 of 29 C.F.R. chapter 1, applies to all employers subject to the Act, regardless whether their employees are organized by any labor organization.

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NEW NLRB EMPLOYEE RIGHTS POSTING….

• The rule requires "[a]ll employers subject to the NLRA [to] post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures." The notice, which must be at least 11 inches by 17 inches, may be obtained from the Board's web site. The required posting details numerous protected statutory rights, including: The right to join or assist a labor union. The right to engage in collective bargaining with respect to

wages, benefits, hours, and working conditions.

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NEW NLRB EMPLOYEE RIGHTS POSTING…. The right to discuss wages, benefits, and other working conditions

with coworkers or union representatives. The right to raise work-related complaints directly with an

employer or a governmental agency regarding their working conditions.

The right to engage in strikes or picketing. The right to refrain from engaging in such activities.

• Employers are required to physically post the notice at all of their physical workplaces as well as to post the notice on intranet or internet sites if the employer customarily communicates with its employees about personnel rules or policies by such means. The notice that must be posted is included as Appendix A to the final rule, which can be obtained through the Board's web site, www.nlrb.gov.

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• If 20 percent or more of an employer's workforce is not "proficient" in English, the employer must post the notice in the language spoken by the employees. The rule does not provide any criteria for determining whether an employee is or is not "proficient" in English.

• In the final rule, the NLRB majority indicates that noncompliance with the posting requirement will result in both unfair labor practice liability and/or waiver of defenses in unfair labor practice proceedings before the agency. For example, if an employer is charged with discharging an employee based upon union activity, the

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failure to post the notice may be used as evidence of anti-union animus. The commentary to the final rule specifies that "the Board may consider a knowing and willful refusal to comply [with the posting requirement] as evidence of [an] unlawful motive.“

• Further, the Board proposed that the statute of limitations period for unfair labor practice charges will result in both unfair labor practice liability and/or waiver of defenses in unfair labor practice proceedings before the agency. For example, if an employer is charged with discharging an employee (six months) may be tolled for charges filed against employers who failed to post the notice.

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• In light of the final rule, all employers covered by the NLRA—regardless of whether their employees are organized—must comply with the compulsory posting requirement by November 14, 2011. Federal contractors who already posted the notice required by Executive Order 13496 will not be required to post an additional notice.A copy of the full Jones Day Commentary can be obtained from the Jones Day Website at jonesday.com.

• The NLRB recently posted on its website—nlrb.gov—its recommended poster language to comply with the new Rule.

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ACCESS RIGHTS OF NON-EMPLOYEES (UNION) REPRESENTATIVES TO EMPLOYER PREMISES AND TO EMPLOYER INFORMATION, INCLUDING

ESPECIALLY, INFORMATION REGARDING EMPLOYEES

• Pending before the Board is a case in which the Board has asked for interested parties to respond to questions regarding what standard should be applied for the Board to determine whether employers have discriminated against unions with respect to access rights to their premises.

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ESPECIALLY, INFORMATION REGARDING EMPLOYEES….

• The case raising this issue is Roundy’s, Inc.. In this case, an NLRB Administrative Law Judge found that Roundy’s did not have the right to exclude union representatives from certain of its properties because the employer—a retail food company—had permitted certain other groups, such as the Girl Scouts, to solicit on its property, but had concurrently excluded union agents from having such equal access.

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ESPECIALLY, INFORMATION REGARDING EMPLOYEES….

• This case raises significant issues, particularly for health care employers, including whether they have in place properly drafted solicitation, distribution and access rules and whether they enforce such rules on a non-discriminatory basis. This case also indirectly raises the issue of employee solicitation, distribution and access rights, including the rights of off-duty employees to engage in such activity on an employer’s premises.

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SUCCESSOR EMPLOYER OBLIGATIONS TO AN EXISTING UNION

• The Board, in a recently-issued case—UGL—UNICCO Service, Co., 357 NLRB No. 76 (2011) held, in a 3-1 vote, that an incumbent union is entitled to an “irrebuttable presumption” of continued majority support among employees of a successor employer. Over the dissent of Board Member Hayes, the Board Majority found that such successor employers are required to bargain with an incumbent union for a reasonable period of time despite doubts that the employer may have about the union’s continued majority status.

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SUCCESSOR EMPLOYER OBLIGATIONS TO AN EXISTING UNION….

• The Board concluded it will apply this new approach retroactively in representation cases and added the following modifications to the “successor bar” doctrine: First, to determine what constitutes a “reasonable period of time”

for protecting the incumbent union’s majority status, the Board will distinguish situations where a successor employer unilaterally sets terms and conditions of employment—a right which such employers currently have—and situations where an employer adopts the existing terms and conditions of employment as a starting point for collective bargaining.

In situations where an employer lawfully establishes new terms and conditions of employment, the Board will define a

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“reasonable period of bargaining” to be a minimum of 6 months and a maximum of 1 year, measured from the date of the first bargaining meeting. In reviewing the reasonableness of the bargaining period, the party that invokes the successor bar bears the burden of establishing that a reasonable period has not yet elapsed.

In cases where the employer agrees to adopt the existing terms and conditions of employment as a starting point for bargaining, the Board views this situation similar to bargaining for a renewal collective bargaining agreement and, therefore, less of a threat to the established bargaining relationship. In those cases, the reasonable period will be a bright-line 6-month time period.

The Board Majority also established that together, the “successor bar” and the “contract bar doctrine,” which prevents

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an election for up to 3 years after reaching a valid bargaining agreement—could result in employees being denied the opportunity for an election for multiple years. Accordingly, the Board has fashioned a new rule holding that “where (i) a first contract is reached by the successor employer and the incumbent union within the reasonable period of bargaining, during which the successor bar applied, and (ii) there was no open period permitting the filing of a petition for election during the final year of the predecessor employer’s bargaining relationship with the incumbent union, the contract bar period applicable to election petitions filed by employees or by rival unions will be a maximum of 2 years instead of 3 years.”

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RIGHTS OF EMPLOYEES COVERED BY AN EMPLOYER-UNION NEUTRALITY AGREEMENT

RESULTING IN THE UNION BEING RECOGNIZED WITHOUT AN NLRB SECRET BALLOT

CONDUCTED ELECTION

• The Board Majority, in a much anticipated decision last month, shortly before Chair Liebman’s term expired, voted to overturn the standard established by the Bush Board in the Dana I cases. Under this now-rejected approach, employees who were brought into a bargaining unit through a “card check” or similar non-NLRB secret ballot election recognition process, had the right to immediately petition for a secret ballot election to test whether the union, in fact, had the support of the majority of the bargaining unit.

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CONDUCTED ELECTION….

• On August 26, 2011, in Lamons Gasket Co., 357 NLRB No. 72 (2011), the Board Majority concluded that the prior procedure permitting employees to petition for an election if 30% or more of the unit employees file a valid petition within 45 days of the notice of an employer’s voluntary recognition of a union, would no longer be available to employees and that no petition for an election could be filed for at least 6 months after the parties’ first bargaining session.

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CONDUCTED ELECTION….

• Further, the time period in which a petition could be filed requesting an election, could be extended up to 1 year.

• In determining what is a “reasonable period of time” for bargaining after a voluntary recognition process has resulted in union recognition, the Board will now consider the following factors:

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CONDUCTED ELECTION….Whether the parties are bargaining for an initial contact.The complexity of the issues being negotiated.The amount of time elapsed since bargaining commenced

and the number of bargaining sessions during such time period.

The amount of progress made in the negotiations and how near the parties are to concluding an agreement.

Whether the parties are at impasse.

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THE NEW STANDARD FOR UNIT APPROPRIATENESS DETERMINATIONS IN NON

ACUTE HEALTH CARE FACILITIES• Again, on August 26, 2011, in the third major decision

released on Chair Liebman’s last day at the Board, the Board announced its 3-1 decision to reverse Park Manor Care Center, 305 NLRB 872 (1991).

• In Park Manor, the Board initially established a procedure to determine appropriate units in non acute health care providers, including long-term care facilities. There, the Board rejected the bargaining unit approach adopted by NLRB rulemaking for acute health care providers and instead formulated a “pragmatic or empirical community of interest” approach. Such approach had been in place for 20 years.

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ACUTE HEALTH CARE FACILITIES….

• In Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), the Board held that in order for an employer to successfully oppose a petitioned-for-unit on the basis that other employees should be included in such unit, the employer must establish that the excluded employees share an overwhelming community of interest with the petitioned-for-employees.

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ACUTE HEALTH CARE FACILITIES….

• Many commentators believe this is an extremely significant change in the process by which the Board determines an appropriate voting unit and will result in non acute health care employers facing the possibility of a multiplicity of small or micro bargaining units based on commonality of employee job descriptions or other narrow-like criteria.

Source: The Impact of Employer Opposition on Union Certification Win Rates: A Private/Public Sector Comparison ,Kate Bronfenbrenner and Tom Juravich, Cornell University ILR School,10-1-94

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OTHER IMPORTANT PENDING BOARD CASES

• D.R. Horton, Inc., 12-CA-2564—the issue in this pending case in which the Board has also requested amicus briefs from interested parties, is whether an employer violates Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing an arbitration agreement requiring employees, as a condition of employment, to submit all employment disputes to individual arbitration, to waive their rights to a judicial forum regarding such disputes, and to refrain from consolidating such disputes as a class or collective action.

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OTHER IMPORTANT PENDING BOARD CASES….

• Hawaii Tribune-Herald, 37-CA-007043—the question in this pending case in which the Board also requested amici participation, is whether, and if so when, an employer has an obligation to provide a union with statements it obtains during an investigation into employee misconduct. The Board’s notice to interested parties states that current Board precedent does not require employers to produce “witness statements” that it obtains during an investigation, but recent decisions have brought into question, what constitutes an exempt “witness statement.”

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THE OBAMA BOARD’S PROPOSED NEW ELECTION RULES

• Potential Shorter Election Period

Petition to election shortened potentially from current 30 to 40 day average period to 10 to 21 days.

FY 2010, the median time for an election was 38 days. 95% of all elections held in less than 2 months. FY 2010, 92% of all elections by pre-election agreement.

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THE OBAMA BOARD’S PROPOSED NEW ELECTION RULES….

• Proposal Drafted Without Board Deliberations Did not deliberate with Republican colleague, which

would have triggered open meeting requirement of the Government in the Sunshine Act.

Did not preview proposed rule before NLRB’s Rules Revision Committee.

Did not seek input from American Bar Association’s standing labor law committees.

Inconsistent with President’s Executive Order 13563, requiring agencies to seek input from those affected before proposing any new rules or regulations.

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• The New Proposed Election TimelineElection to be held at the “earliest practical date” consistent

with these rules.Pre-Election Statement of Position – 7 Days from Petition

Filing.Excelsior List – 2 Days from Hearing Close, Union May

Waive.Notice of Election – Posted for 2 Days before Election.Unit Composition and Unit Placement Issue – Generally

deferred for resolution until after the election.

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• The New Proposed Pre-Election Hearing Process

Adversarial in nature. Employer’s required Statement of Position. Offer of proof. Issues waived if not raised in Statement of Position. 20% rule on eligibility issue–if up to 20% of the voting unit

composition is challenged, voting occurs and challenges resolved, if at all, post-election.

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• Proposed New Employer Statement of Position and Its Impact

A comprehensive statement to be filed by the employer within seven days of petition filing that identifies all contested issues such as:

Board jurisdiction; Appropriate unit; and Supervisory and managerial unit placement matters and

independent contractor questions.

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• Absent extraordinary circumstances, employer is precluded from raising any issue not raised in the Statement of Position (excluding the Board’s jurisdiction).

• The Board Majority’s attempt to analogize this process as a Federal Rules of Civil Procedure summary judgment process is incorrect.

• Significant adverse impact of this procedure on small business entities with limited access to experienced counsel and also adverse impact on large employers, in large and diverse voting units, especially multi-site voting unit situations.

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• The Proposed New Post-Election Review Period Procedure

Discretionary review of all pre-election issues and post-election objections and challenges

Board abandonment of decision-making responsibility to Regional Directors, “career civil servants”

Employers will proceed at their peril during any review period of contested election issues.

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Pursuant to the Board’s prohibition on employers making unilateral changes after a union has been successful in an NLRB election, an employer must first bargain with such union before making any changes in terms and conditions of employment which are mandatory subjects of bargaining.

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• The Requirement For Confidential Employee Information

The proposed rule expands the Board’s request for voter information from its traditional Excelsior voting list requirements to now include—

e-mail addresses (whether work or personal or both unclear);

phone numbers (whether work or personal or both unclear); and

work locations, shifts and job classifications.

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• The Board Majority’s Rationale for the Proposed Rules

A “solution” in search of a problem. Board Majority sited delay without identifying and

analyzing small fraction of cases in which delay has occurred.

Underlying reason to increase union’s 60%+ win rate, limit pre-election debate and the ability of employers to express their views on unionization to their employees.

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• Additional Problems with the New Rules Proposed rule delays until after the election some issues

that determine whether an election should have been had at all.

Proposed process may result in more litigation and less expeditious ultimate decision making.

Failure of parties to know, with certainty, supervisory status of individuals presents both practical and legal problems.

Suggestion of potential use of electronic card signatures.

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• The Board’s Initiatives Here Raise Significant Policy Concerns

Only two of the current three Board Members, as noted previously, have been confirmed by the United States Senate—Member Craig Becker (D) is serving pursuant to a recess appointment by President Obama—his term expires when Congress adjourns this year.

Chair Wilma Liebman’s (D) term expired on August 27, 2011—prior to the expiration period for comment on the proposed rules, which final comments were required by September 6, 2011.

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Potential for only three Board Members and, as noted previously, only two of whom have been confirmed by the Senate, will consider and review the thousands of pages of comments that have been filed by interested parties regarding the proposed rules.

If the rules are still pending when Member Becker leaves the Board, a two Member Board lacks the legal authority to act, pursuant to a recent U.S. Supreme Court Decision.

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A major policy question for the Board in this area—will it proceed to adopt such comprehensive and controversial rules with less than a full five Member Board being confirmed by the U.S. Senate?

Public comment period on the Board’s proposed new election rules ended on September 6, 2011, with thousands of individuals and organizations filing public comments—51,576 comments were filed.

LEGISLATIVE AND LITIGATION RESPONSES TO THE OBAMA BOARD

AGENDA• Response to the Acting General Counsel’s Boeing

Complaint—Protecting Jobs From Government Interference Act (H.R. 2587)—this legislation would eliminate the NLRB’s authority to order employers to reinstate or restore transferred work. The U.S. House of Representatives passed this legislation on Thursday, September 15, 2011, by a vote of 238-186.

• Other pending legislative proposals in the House and Senate to require secret ballot elections before union representation rights can be obtained and to require the Board to hold a hearing to resolve all contested issues prior to an election.

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LEGISLATIVE AND LITIGATION RESPONSES TO THE OBAMA BOARD

AGENDA….

• National Association of Manufactures v. NLRB—NAM, on September 8, 20,11, filed a lawsuit in the District of Columbia U.S. District Court, challenging the validity of the NLRB’s newly-implemented rule that would require most employers in the country to post a notification of employee rights. The law suit requests that the NLRB be enjoined from enforcing the rule scheduled to take effect on November 14, 2011.

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2011 Union Activity Trends and Strategies

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Decline in Union Membership

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Americans are Critical of Unions but Credit Them for Improving Wages and Conditions

• 65% agree that unions improve wages and working conditions of workers

• 72% believe that unions are too involved in politics

• 71% believe that unions are more concerned with fighting change than with trying to bring about change

• 59% disagree that unions work to get legislation that helps all working people, whether they are union members or not

• 62% disagree that unions give members their money's worth for the dues they pay

• Only 47% of union members agree with this sentiment

Source: The Harris Poll of 2,450 adults surveyed online between August 8 and 15, 2011 by Harris Interactive

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Healthcare vs. Non-Healthcare in RC Elections

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Bargaining Units Being Targeted

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Organizing Issues

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Organizing Tactics

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Most RC Petitions Filed (2011)

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NNU Ramps Up Activity Nationwide

• Tactics include use of: • Strikes• Rallies• CE courses• Mailings• Media

• As leverage during negotiations

• To organize members• To push staffing ratios and

other agenda items

116

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NNU Strike Agenda

• DeMoro says she’s “completely comfortable” using walkouts to make a negotiating point.

• NNU rep. Ken Zinn says its tactic of multiple, short-term strikes is effective• 24-hour walkouts minimize economic

pain to the workers while maximizing visibility and forcing the hospital to hire replacement workers and beef up security

117

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NNU Holding “CE Classes” Nationwide

• Topics include:• Magnet Status and shared

governance• Electronic medical records• Corporatization of

healthcare• Staffing ratios• Electronic patient data

mining• Workplace violence

prevention

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NNU Leveraging Wage and Hour Claims

• Internal NNU supporters initiate claim• Leverage "trust" issue among employees• The NNU Solutions:

• 30 minute uninterrupted unpaid meal period• 15 minute paid rest breaks during each 4 hours

worked• Relief nurses instead of doubling patient loads during

meals & breaks

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SEIU to Increase Organizing

• “Fight for a Fair Economy” campaign focuses on low-wage minority workers in 10-15 cities (Miami, Cleveland, Milwaukee and Detroit…)

• Focus on organizing workers in airports, hospitals, retail stores and other sectors

• Will "build to strikes where possible" to pressure employers during organizing and bargaining

• Has pushed the NLRB to shorten the election period to 10 days

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NUHW and SEIU Still Fighting for Kaiser

• Election last September between SEIU and NUHW for 43,000 Kaiser Permanente workers in California resulted in SEIU win (61% to 39%)

• Recently NLRB judge ruled that SEIU made statements that were coercive during the campaign and ordered election to be rerun

• NUHW also accusing Kaiser of aiding SEIU in the election

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NUHW: Not Just in California Anymore

• NUHW has been actively organizing SEIU employees at a hospital and nursing home in Michigan

• Sal Rosselli visited workers in July and NUHW has filed petitions at both facilities

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James P. Hoffa at Labor Day Rally

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Hoffa’s Response to His Speech

“We’re fighting back. That’s what Teamsters do – we stand up for what is right,” Hoffa said. “I will never apologize for standing up for my fellow Teamsters and all American workers.”

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