AHCA/NCAL STRATEGY POST-EFCA (1/7/11)
NLRB Specialty Health Care Decision
ISSUE: / LEGAL:(Priscilla) / LEGISLATIVE:
(Fran) / REGULATORY:
(Dianne/Shelley) / PA:
(Greg/Katherine) / COALITIONS:
NLRB has released a decision that proposes reviewing the current rules to allow separate units (such as CNAs only or dietary only or housekeeping only, etc.) as separate bargaining units instead of one single bargaining unit for all these types of positions (usually designated as “service and maintenance”). This minimizes possibilities for hearings, speeds up the election process and could result in facilities having multiple bargaining obligations.
Increased unionization (especially in cases with multiple units) will lead to increased operational costs. Negotiation costs, strike preparation costs and arbitration costs are all components. Additionally, care could suffer as a result of splintering the services and maintenance unit into separate bargaining units. / 1. Legal Committee recommends AHCA/NCAL amicus brief (1/11);
2. AHCA President and CEO approve funding (1/11);
3. Coordinate various coalition sign-on (2/11);
4. Coordinate all briefs filed (2/11);
5. Submit AHCA/NCAL brief (2/22/11);
6. Assuming an adverse decision, continue to defend LTC in subsequent and relevant judicial review (Decision Date); and
7. Provide key points from the amicus brief to AHCA/NCAL Advocacy staff for likely Hill intervention (2/11). / 1. Identify legislative “ask” (e.g., NLRB exceeded authority and circumvented APA)(1/11);
2. Lead efforts in coalition support (1/11);
3. Seek and mobilize coalition partners (1/11);
4. Target members of Congress to lead vigorous oversight of the NLRB (1/11);
5. Secure Congressional hearings (2/11); and
6. Assuming an adverse decision, introduce legislation overturning NLRB decision (Decision Date). / 1. Inform membership that Specialty Health Care is in effect a notice of proposed rulemaking (1/11); and
2. Re-establish the AHCA/NCAL Workforce Committee “union workgroup” to help provide relevant data and operational information for the amicus brief (1/11). / 1. Pitch story to national media (1/11);
2. Op-Ed (1/11);
3. Draft various talking points for members, press and Hill (1/11); and
4. Educate members about issue and impact (1/11). / Leg/Legal:
Alliance
AAHSA
US Chamber
CDW
AHA
FAH
PA:
NY Times – Robert Pear
WSJ
Bloomberg
Politico
Trade press
BACKGROUND:
In 2009, the entire nation faced drastic changes to labor laws and the unionization process. Labor and unionization legislative packages, such as the Employee Free Choice Act (EFCA), threatened to have a significant impact on long term care providers.
Due to a strong movement against the legislation, and a variety of other factors, the unions were not successful in pushing their plan through Congress. However a substantial increase in union activity has occurred in the last few months and it appears union organizers have developed another avenue to advance their agenda.
The National Labor Relations Board (NLRB), the Federal agency that oversees laws relating to union organizing, initiated an aggressive reshaping of labor relations in March 2010 when President Obama announced recess appointments for two Democrat members, one of which hard previously worked for SEIU. With the addition of two more nominees in July, the President essentially turned a two person, bi-partisan board into a 3-1 pro-labor agency. On January 5, 2011, President Obama nominated a fifth member to the NLRB, another Republican member, as well as a nominee to be General Counsel. We are currently awaiting confirmation for these two recent nominations.
On December 22, the NLRB handed down a significant and far-reaching decision via Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers. The decision proposes changing the standards for determining appropriate bargaining units in subacute facilities.This means that separate units, such as housekeeping staff only or nurse assistants only can form individual unions within a facility. By addressing the issue through this court case instead of another venue, the pro-union NLRB minimized the possibility of opposition.
The NLRB has also released a notice of proposed rulemaking that would require employers to notify employees of their rights under the National Labor Relations Act (NLRA). Additionally, President Obama has already issued a 2009 Executive Order that required government contractors to display such a poster. NLRB will use the same language as in the DOL poster.
In addition, the NLRB has issued a memorandumannouncing a new and stronger enforcement policy against employers accused of unlawful conduct during union organizing campaigns. This memo builds upon NLRB'sSeptember 30 Memorandumannouncing that the Board would be pursuing more injunctions in cases where it believes the employer violated the law during an organizing campaign.
AHCA/NCAL is opposed to any far-reaching action that will amend federal labor standards. We believe it is essential that certain employee rights and protections are protected. Our member facilities work hard to provide a positive working environment, including competitive wages and benefits. Our providers have a direct working relationship with their employees, which we believe is better than having an outside third party standing between us.
We are working through various avenues to oppose this action and protect the rights of employees, unions, and employers.