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Polsinelli - Health Care Polsinelli - Health Care


March 2015


Is This the Perfect Storm for Union Organizing of Health Care Providers?






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Mark D. Nelson



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Matthew J. Murer

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Jane E. Arnold

Practice Area Vice Chair


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Colleen M. Faddick

Practice Area Vice Chair


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For the past six years, the National Labor Relations Board has issued decisions and rules that substantially impact the rights of employers under the National Labor Relations Act. For example, recent Board decisions have limited employers' rights to discipline employees for vulgar, offensive, and threatening speech and conduct. The Board has limited the right of employers to control employee access and use of email. Employers cannot, under all circumstances, advise employees to maintain the confidentiality of internal investigations and witness statements are no longer shielded from being given to the union. These are just examples.

However, the Board's actions regarding union representation elections may well present the greatest threat to the ability of health care employers to maintain union-free status. The first action, the Board's decision in Specialty Healthcare, significantly changed how the Board determines what is an appropriate bargaining unit. The effect of this decision is that bargaining units will be much smaller than they have been in the past, which is likely to result in more elections won by unions. While this decision does not apply to bargaining units in acute care hospitals, it does apply to other health care settings such as long-term care facilities, urgent care centers, surgical centers, LTACs and rehabilitation facilities.

The second action is the Board's Final Rule, which dramatically changes the process for holding union elections. This rule, which becomes effective April 1, shortens the time between when a representation petition is filed and when the election is held. Here is a summary of the changes and the impact:

What Employers Should Do Now

  • Assess whether front-line supervisors meet the current NLRB standard for supervisory status;
  • Provide preventive labor relations education and training to all supervisors, managers and executives and Board members;
  • Assess employee engagement and union organizing vulnerability and develop strategic plan to increase engagement and reduce vulnerability;
  • Analyze potential bargaining units at all non-acute care sites of care/operations;
  • Comprehensive review of key HR policies including:
    • Off-duty access by employees;
    • Solicitation/distribution;
    • Dress code/button/insignia;
    • Social media;
    • Code of Conduct/Behavior; and
  • Audit actual enforcement practices regarding key HR policies.

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* Law360, March 2014
** The American Lawyer 2013 and 2014 reports







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