The National Labor Relations Board (NLRB) has continued its aggressive
attack on employers in the healthcare industry and nonunion employers
generally. With a membership majority that is widely recognized as being
pro-union, the NLRB has used a variety of mechanisms to make it easier
for unions to challenge well-established employer practices and to
organize employees in many industries, with particular emphasis on the
rapidly growing healthcare industry. The following is a summary of some
of the more significant actions taken by the NLRB in the past year.
Smaller Bargaining Units Recognized
In Specialty Healthcare, the NLRB significantly expanded the
ability of a union to organize a smaller unit of employees. Although the
NLRB has by regulation defined appropriate bargaining units in the
acute-care hospital setting, it overruled a well-established practice of
applying those categories to non-acute care facilities.
The decision signals that employers will not be able to challenge a
smaller unit by claiming that the employees should be part of a broader
unit, unless the employer can prove there is an "overwhelming
community of interest" between the union's proposed unit and the
excluded employees, to the point where the factors in the community of
interest test must "overlap almost completely." This decision requires
you carefully analyze the structure of your workforce to attempt to
avoid the union's effort to organize only a small portion of your
employees.
Social Media Policies Challenged
The NLRB General Counsel has issued three separate memorandums dealing
with employer social media policies, the most recent one being issued in
May, 2012. Using the general prohibition in Section 7 of the National
Labor Relations Act (NLRA), the General Counsel will find unlawful a
number of provisions commonly found in employer social media policies.
For example, an employer policy prohibiting employees from having online
discussions regarding confidential employee or company information
would be considered impermissibly vague and overbroad. In addition, a
policy that encourages employees to respect privacy and disclose
personal information only to those authorized to receive it is also
viewed as unlawfully broad.
Generally, to be permissible, a policy would need to expressly
recognize that it does not in any way preclude employees from exercising
their rights under Section 7 of the Act to discuss issues relating to
their employment. On September 7, 2012, in Costco Wholesale Corp.,
the NLRB adopted the General Counsel's approach in finding that rules
contained in a handbook for nonunion employees were unlawful where they
included a general prohibition on statements that damage the company's
(or any person's) reputation, or the sharing of sensitive information.
Because the NLRB has adopted much of the analysis contained in the
General Counsel's memorandums, there is a clear indication that the NLRB
will pursue unfair labor practices challenging social media policies.
You need to determine whether their current policy might be considered
unlawful.
Employment-At-Will Language Found Unlawful
Many employers utilize employee handbooks to effectively communicate
with their employees, and virtually all of those handbooks include some
type of disclaimer language advising employees of their at-will status.
Most also state that changes to such status can only occur by a written
statement signed by an appropriate company official.
But in two separate cases earlier this year, the NLRB pursued unfair
labor practice charges against employers that utilized that type of
at-will provision as being a violation of employees' right to organize
under the NLRA. It would appear that the NLRB either wants such
disclaimers to be removed from employee handbooks, or to have those
statements modified by expressly recognizing the right of employees to
join with others to work toward altering the terms or conditions of
their employment, including joining a union.
Confidentiality Of Internal Investigations Limited
In Banner Health System, as reported in our September 2012 Labor
Letter, the NLRB held that a rule prohibiting employees from discussing
an internal investigation was unlawful. In that case, as is a common
practice for many employers, while human resources was conducting an
internal investigation, employees were asked to maintain the
confidentiality of that investigation.
Such requests are commonly aimed at protecting the integrity of the
investigation. However, the Board found that the confidentially request
violated Section 7 rights to protect discussions between employees
concerning terms and conditions of their employment, as well as
communications for other mutual aid and protection.
Union Insignia In Patient-Care Areas Protected
In St. John's Health Center, the Board found that a healthcare
employer may have a presumptive right to ban union insignia in
patient-care areas. But if the ban is selective, and other insignia
permitted, then union insignia must also be allowed. In that case,
because the hospital allowed employees to wear a ribbon that read "Saint
John's mission is safe patient care," it could not prohibit a union
ribbon.
Arbitration Clauses Prohibiting Class Claims Jeopardized
Many employers require employees to sign arbitration agreements, that
include a waiver of the right to bring class or collective actions
against the employer. Such provisions have been approved by the U.S.
Supreme Court. However, in D.R. Horton, Inc., the NLRB held that
it is unlawful for an employer to require employees to sign such a
waiver because it violates their Section 7 rights.
Elections Expedited And Notices Required
Last year, the NLRB attempted to create a rule that would require more
expedited union elections, which would minimize the employer's ability
to communicate with employees regarding the negative effects of union
representation. The Board also issued a rule that would require all
employers, including nonunion employers, to post a notice advising
employees of their rights under the NLRA. Both of those proposed rules
are currently tied up in court challenges, but the Board is expected to
continue to pursue those efforts.
As the foregoing demonstrates, the Board continues to use a very broad
interpretation of the NLRA to make it easier for unions to organize
employees, particularly in the healthcare setting. Proactive measures
need to be considered to address this continuing attack.
