IRI Intelligence Briefing

News and Developments Affecting the Workplace

Volume Number & Date: 
Vol. 2 No. 4 - November 2010

Healthcare Labor Relations: Uncertainty Grows

The Republican/Tea Party tsunami that swept through Congress November 2 adds complexity to an already uncertain situation for labor legislation and regulation.

  • Republicans will have a 239-184 majority in the House starting in January. They also will hold all leadership posts, including the committees and sub-committees that do the heavy lifting shaping legislation before it is voted on. However, Democrats retained control of the Senate, limiting Republican options for sweeping changes.
  • A good number of the new House members defeated more mainstream Republicans in the primaries. Many of these incoming freshmen used campaign rhetoric about bucking the Washington establishment, further clouding the crystal ball for what Congress might do to labor law in 2011. Whether Republican leaders will be able to control their caucus enough to thwart or reverse Democratic initiatives remains to be seen.
  • The status of healthcare reform also adds to the uncertainty next year for healthcare organizations. Many Republican candidates during the campaigns attacked "Obamacare" and vowed to repeal it if elected. The morning after the election, John Boehner (R-OH), who is poised to become House Speaker, vowed to roll back the healthcare bill, branding it a "monstrosity." Senate Minority Leader Mitch McConnell (R-KY) said "the Republican leadership in the House and Senate is committed to [the law's] repeal."

The historic Republican shift in the House -- the largest since 1948 -- almost certainly indicates that the brief pro-labor tilt is likely to swing back toward business's interests next year. Indeed, Republicans reportedly are preparing legislation to reverse what momentum labor has gained. One bill under discussion would prohibit employers from entering into "card check" agreements with unions, a process often used now to bypass secret-ballot elections; a number of state legislatures have passed or are considering similar measures. Other draft legislation would limit labor's political clout by stopping unions from using members' dues money for political purposes unless members give written permission.

What Can a Lame Duck Do?

Republican control is two months away, however. Until next January, Democrats still control both houses of Congress, providing time for a lame duck session (slated to begin Nov. 15) to pass pro-union labor law modifications.

Lame duck sessions of Congress can be unpredictable. Special interests of all stripes pressure legislators who are leaving Washington and don't especially care what they leave behind for their successors. Thus, the door is opened for frustrated labor supporters who have seen the Employee Free Choice Act (EFCA) back-burnered for two years.

While the coffin may be closed in Congress on EFCA's card check provision, other elements of the bill could still have some traction. Expedited elections especially are on the table, raising the possibility that Congress could ram through a new law reducing the time to campaign for NLRB-supervised elections.

All Eyes on the NLRB

As cloudy as labor's prospects appear to be in Congress, the skies are sunnier for unions at the NLRB. Organized labor is hopeful that through board decision-making, new regulations and rule making, the NLRB will reverse many of the pro-employer rulings of the Bush administration and make it easier for unions to organize workers.

With its 3-1 Democratic majority, the NLRB has a quorum that strongly believes that the Board has tilted too far in business's favor, and that big changes must be made in order to help unions. Board chair Wilma Liebman, Craig Becker and Mark Pearce all have strong pro-labor leanings, and they seem prepared to act on labor's behalf.

Liebman and Becker are the point of the spear. Both are former union attorneys, Liebman for the Teamsters and Bricklayers and Becker for SEIU and AFL-CIO. Both strongly favor reducing employer power in the workplace.

Pearce recently promoted drastically cutting the time for holding union representation elections, from 42 days from filing a union petition to as little as five days after the petition is filed with the NLRB. Pearce also has suggested postponing all voter eligibility issues until after the election; supervisory status, unit placement, voter eligibility, part time, contracted employees, joint employer status, confidential and managerial employees, and others would be left undecided until after the election.

While not as threatening as card check, expedited elections nonetheless would be very difficult for many employers to manage; unions could spend as much time as they needed quietly collecting petition signatures, then file the petition and have an election only days later.

Unions have long said the current five- or six-week lag is unjust because it gives employers too much time to convince employees to not unionize. The longer the period before the vote, the greater the likelihood of unfair labor practices from both sides, Pearce said. Over the past year, the NLRB conducted more than 2,200 elections with a median of 38 days between the filing of the petition and the election, he noted. "I think we can do better."

Becker Term-limited, NLRB Needs to Move Quickly but Carefully

Because President Obama's nomination of Craig Becker to the NLRB was opposed so intensely, the president was forced to bypass the Senate and appoint Becker during Congress's spring 2010 recess. Because Becker did not receive Senate confirmation, his term will expire late next year instead of the five years for members who are confirmed by the Senate. Additionally, Chair Liebman's term expires in August 2011, and the recent retirement of Member Peter Schaumber left a Republican vacancy for President Obama to fill.

Liebman, Becker, Pearce and their backers in Congress and the White House will need to determine what strategy to take with EFCA issues. The current Board line-up may be the most pro-labor roster for years to come; the first half of 2011 could be a now-or-never period for unions.

Liebman et al need to move with some caution, however; although the NLRB theoretically is an independent agency, it still relies on Congress for funding. Over the years, Congress hasn't been shy about cutting the budgets of agencies that have acted contrary to its preferences. That the new Congress's preferences will be different than those of Ms. Liebman, Mr. Becker and Mr. Pearce is an understatement.

Pro-labor Changes Already Made or Underway

  • The Labor Department is committed to tougher enforcement of labor laws to reverse a "culture of noncompliance" that Labor Dept. Solicitor M. Patricia Smith claims has developed over the past 10 years.
    Smith said that the Bush Administration had emphasized compliance assistance while investigations and enforcement of labor laws declined. "They relied on trickle-down enforcement; it doesn't work any better than trickle-down economics."
    As a result of reduced enforcement, "many employers developed a 'catch-me-if-you-can' attitude," Smith said. "Our challenge is to change that attitude." Among the new tactics for increased enforcement, Smith said, are increases in criminal prosecution, use of enterprise-wide enforcement actions, industry-wide targeting for wage violations and liquidated damages in wage and hour cases.
  • The NLRB has ruled that a union practice of displaying large stationary banners at a secondary employer's business is not coercive, and so does not violate U.S. labor law.
    The decision covers three Arizona cases in which union carpenters held 16-foot-long banners near two medical centers and a restaurant to protest work being performed for the owners of the establishments by contractors that the union claimed paid substandard wages and benefits. Two banners declared "SHAME" while a third urged customers not to eat at the restaurant.
  • NLRB Acting General Counsel Lafe Solomon in late October announced an initiative to strengthen and streamline the board's response to charges filed when employees are fired in the midst of a union organizing campaign.
    Solomon said his office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. Additionally, new timelines and procedures have been created to speed the process.
    "Firing an employee in the middle of a union organizing campaign can quickly destroy the campaign by creating a climate of fear in the workplace. Clearly, it can also have a devastating effect on the employee's life. We need to ensure that the statutory rights of unlawfully fired employees are restored in real time," Solomon said. "These cases go to the very essence of our enforcement responsibilities."

Visibility of Strikes Growing

Although the use of strikes by unions continues to decline, their visibility in healthcare has increased significantly this year.

In Philadelphia, nurses represented by the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) struck Temple University Hospital for 28 days. PASNAP is a National Nurses United (NNU) affiliate.

In California, there have been strike threats at more than 100 hospitals and nursing homes. Among the potential targets were 35 facilities owned by Catholic Healthcare West, along with 10 Sutter hospitals. The unions claimed that pay, benefits and nurse staffing levels were their rationale for attempting to take nurses away from patient bedsides to walk the picket lines.

In June, 12,000 members of the Minnesota Nurses Association (MNA) went on a one-day strike at 14 Twin Cities hospitals, garnering nationwide publicity in the process. While the work stoppage appeared to have no impact on patient care, the extensive media coverage heightened public awareness of staffing ratios and other issues.

The MNA is a member of National Nurses United, the nurse super-union formed last year by the California Nurses Association/National Nurse Organizing Committee (CNA/NNOC), United American Nurses and the Massachusetts Nurses Association. Currently, NNU has 32 affiliates.

Texas, Kansas wins propel CNA/NNOC & SEIU into Florida

The intensity of union organizing in the Sunshine State continues to grow.

Coming off a sweep in Texas -- six wins at six hospitals (including a decertification victory) -- and victories in Kansas, SEIU and CNA/NNOC moved on to Florida as the next target of opportunity.

The Texas and Kansas victories were the first significant products of an agreement signed last year between SEIU -- the nation's largest healthcare union -- and CNA/NNOC -- the biggest nurse union. The 2009 pact called for wall-to-wall organizing, with CNA organizing nurses, and SEIU targeting the rest of the house.

While the joint wins in Texas and Kansas are indicative of the power NNOC and SEIU together can wield, SEIU on its own has launched a major push in Florida, partnering with NNOC in some instances and going solo in others. The union, which has built a strong presence in the Sunshine State, has taken a number of steps to add potency to its healthcare organizing.

In June, the 20,000-member SEIU Healthcare Florida merged with the 300,000-member 1199SEIU United Healthcare Workers East. According to the merger agreement, 1199SEIU will:

  • Funnel money and personnel into Florida to help organize more healthcare workers and negotiate first contracts for them
  • Increase member dues for employees in acute care hospitals to 2% of gross income, with a cap of $75/month -- $900 a year
  • Mobilize its member-retirees living in Florida to help with organizing, representation and political campaigns
  • Support nurse organizing, including joint work with NNOC Florida

SEIU Healthcare Florida currently represents workers at more than 100 facilities across the state, including such major for-profit healthcare chains as HCA, Tenet, SeaCrest, Greystone and University of Miami Hospital.

Members of NNOC Florida waged a grassroots campaign throughout the summer to generate support for mandatory nurse-to-patient ratio legislation. Though unsuccessful during the 2010 legislative session, NNOC and its legislative sponsors plan to reintroduce the Florida ratio bill in 2011.

In the meantime, NNOC Florida nurses across the state are expected to continue attending city and county council meetings asking members to adopt resolutions calling on delegates representing each city or county to support the ratio bill in Tallahassee when it is reintroduced.

The first governmental unit to pass the NNOC resolution was the Gulfport City Council. NNOC also persuaded the Space Coast League of Cities to recommend adoption of the resolution in the following cities: Cape Canaveral, Cocoa, Cocoa Beach, Indialantic, Indian Harbour Beach, Grant-Valkaria, Malabar, Melbourne, Melbourne Beach, Melbourne Village, Palm Bay, Palm Shores, Rockledge, Satellite Beach, Titusville and West Melbourne.

Additionally, there are now seven NNOC Metro Committees at work on the "Ratios and Rights" campaign, including Tampa/St. Pete, Orlando, Ft. Lauderdale/Miami, Palm Beach County, Daytona Beach, Gainesville and Jacksonville.

California Healthcare Election Results: SEIU Prevails

The bitter feud between the SEIU and the California breakaway National Union of Healthcare Workers (NUHW) lost a bit of steam in September when a statewide group of Kaiser Permanente healthcare employees voted in favor of staying with SEIU, rather than switching allegiance to NUHW.

A total of 30,295 mailed ballots, from among 43,000 eligible voters, were received by the regional NLRB office. It was the largest mail ballot election in the agency's history. SEIU won by an 18,290 - 11,364 vote margin.

Nurses Red-Shirting

"Red-shirting" generally means giving an injured college athlete another year of eligibility. National Nurses United (NNU) has expanded the definition to include demonstrating union support.

At hospitals in Illinois, Iowa, Michigan, Washington, D.C., Nebraska and elsewhere, nurses have been spotted wearing red scrub shirts and jackets with "NNU" on the front pocket and "job security, social security and Medicare for all" on the back. A stethoscope surrounds the back slogan.

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