HR Counsel Blog » NLRA

NLRB “Clarifies” Hospital Rules on Union Buttons And Access For Off-Duty Employees

Paul Cherner — Fri, 27 Jan 2012 22:06:20 +0000

The NLRB recently issued a decision that should prompt health care institutions to review their policies and practices concerning the wearing of union buttons and the access of off- duty employees to the health care facility.
In Saint John’s Health Center, 357 NLRB No. 170, the NLRB, in a 2 to 1 decision, found that a hospital had violated the National Labor Relations Act by its publication and application of rules with respect to the wearing of insignia in patient care areas and the presence of off duty employees on the hospital’s premises.
The Board stated that in healthcare facilities –
“restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions in other areas of a hospital are presumptively invalid.”
However, as the Board noted, this presumption does not protect a selective ban on only certain union insignia. In this case, the hospital allowed employees to wear hospital endorsed ribbons and buttons, including in immediate patient care areas. Accordingly, the Board found it unlawful when the hospital banned the wearing of a union ribbon with the legend “Saint John’s RNs for Safe Patient Care”, since it was a selective enforcement of the rule.
Saint John’s previously had a rule that prohibited off-duty employees from being on the hospital’s premises with the exception of allowing them to be there to visit a patient. This rule was later revised to allow off-duty employees to also have access to the hospital cafeteria and to the hospital building for hospital sponsored events, such as retirement parties and baby showers. After the new rule was posted, the hospital enforced the rule against off-duty employees who were at the hospital to campaign for a union.
The Board stated that a rule barring off-duty employees from their employer’s premises is valid only if it meets all of the following criteria:
“Limits access solely with respect to the interior of the facility & other working areas;
is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaged in union activities.”
The Board found that Saint John’s revised rule did not ban access to the premises for any purpose and was therefore invalid.
Suggestion - Hospitals should review, and, if necessary, revise their current rules regarding the wearing of insignia and access to the premises by off-duty employees to ensure that they meet the criteria required by the Board for these rules to be valid. In addition, supervisory employees should be instructed to apply these rules on a uniform, not selective, basis.

NLRB Votes To Change Union Election Procedures

Paul Cherner — Thu, 01 Dec 2011 23:44:39 +0000

On November 30, 2011, the NLRB voted 2 – 1 to make substantial changes in the way it processes petitions for union elections. The end result of these “streamlining” changes will be to shorten the period of time between the date the union files a petition for an election with the NLRB and the date of the union election. Several changes postpone consideration of certain issues until after an election is held, assuming that the issues may not need to be decided if they would not change the results of the election. Other changes grant the local NLRB office discretion with respect to allowing the filing of briefs and special appeals. While there is no set time for when an election must be held, it is expected to be substantially shorter then the NLRB’s current goal of 42 days after the petition has been filed.

The NLRB deferred deciding some of its most controversial proposals, including that a hearing be held withing seven days after a petition is filed and that unions be given employees’ email addresses and telephone numbers prior to an election. While these controversial proposals are not part of the current changes, the NLRB Chairman has stated that those proposals will remain under consideration for possible future action.

Deadline Nears for Federal Government Contractors to Post New Notice of Workers’ Rights

Paul Cherner — Thu, 17 Jun 2010 21:44:32 +0000

The U.S. Department of Labor (“DOL”) has issued a final rule implementing President Obama’s Executive Order 13496 requiring all government contracting departments and agencies to include a provision in their solicitations for contracts requiring that contractors must post a notice in conspicuous places informing employees of their rights under the National Labor Relations Act (“NLRA”).

The new notice must be posted for all covered government contracts or subcontracts that result from solicitations issued after June 21, 2010. Go to the DOL’s website for more specific information about the size and placement of the notice and about possible electronic posting. Click here to see a sample of the new notice. Please note that the notice posted must be at least 11″ by 17″. Covered government contracts will mandate that the prime contractor require subcontractors performing services or goods under the covered contract for $10,000 or more to also post this notice.

Prime contracts for less then $100,000 or those for work performed exclusively outside the U.S. do not required the posting of this notice. The notice requirement does not apply to contracts resulting from solicitations issued prior to June 21, 2010.

This notice has an extensive explanation of workers’ rights to organize and take collective action. It also sets forth examples of adverse conduct by an employer (or a union) against an employee that would be unlawful under the NLRA. It informs employees of possible remedies that can be ordered by the NLRB to correct unlawful conduct and tells them how to contact the NLRB to file a charge.

This new Executive Order also revoked an Executive Order by President George W. Bush that federal contractors had to post informing employees of their rights concerning the payment of union dues or fees

EFCA Introduced in Congress

Paul Cherner — Tue, 10 Mar 2009 22:35:37 +0000

The Employee Free Choice Act (EFCA) was introduced today in the House and the Senate with much fanfare and rhetoric.

In our January 19, 2009 post, we set out the key provisions of this legislation from the prior effort to pass it in Congress. This bill will essentially allow unions to organize workers on the basis of the workers signing union authorization cards and will, in effect, obviate the usual process of the NLRB holding a secret ballot election on the issue of union representation. Additionally, the original bill set a short timetable for bargaining the first union contract and provided for binding arbitration when the parties had not reached an agreement within the proscribed time limits.

This new legislation contains essentially the same provisions of the prior EFCA bill. There will be a vigorous campaign within Congress by unions and employers over this legislation. It is too early to predict what will be contained in the final version of this important piece of legislation.

In the coming months you will be reading about this legislative battle in the papers and hearing about it from the broadcast media, since it is a “hot button” topic for many interest groups.

It is currently expected that the process of trying to enact this legislation may take until sometime this summer before it goes to a final vote. However, Senate leadership has announced that they intend to try to have it voted on after the Easter recess. We will keep you advised of further significant developments.

New Executive Orders for Federal Contractors

Paul Cherner — Wed, 04 Feb 2009 23:10:50 +0000

On January 30, 2009, President Obama issued three Executive Orders that impact federal contractors. These Orders are pro labor and are intended to reverse positions taken during President Bush’s administration.

Nondisplacement of Qualified Workers Under Service Contracts - this Executive Order provides for the continuation of employment of employees who are working pursuant to a service contract with the federal government, when that contract is awarded to a new contractor or subcontractor who will be performing the same or similar services at the same location. The successor contractor and/or subcontractor will be required to offer the existing nonmanagerial and nonsupervisory employees the right to continue their employment under the new contract before being permitted to hire other employees. The Order exempts certain contracts and permits a contracting agency to exempt other contracts or subcontracts if the agency determines that the application of these rules would impair their ability to procure services on an economic and efficient basis.

Notification of Employee Rights Under Federal Labor Laws - this Executive Order requires all federal contractors and subcontractors to post a notice in all places where employees covered by the National Labor Relations Act work, informing them of their rights under the federal labor laws. The Secretary of the U.S. Department of Labor has 120 days to initiate rulemaking to specify the size, form and contents of this notice, which is to be posted during the term of the contract.

Economy in Government Contracting - this Executive Order requires that costs associated with activities undertaken to persuade employees to exercise or not exercise their rights to bargain collectively through representatives of their own chosing (e.g. unions) should be treated as “unallowable” and a federal contractor may not be reimbursed for such costs. The Federal Acquisition Regulatory Council has 150 days to adopt rules and regulations needed to implement this Order.