Get Ready for Union Worksite Soliciting

The National Labor Relations Board, which has leaned toward organized labor since President Obama took office two years ago, may soon ease restrictions against union worksite soliciting during organizing campaigns.  

That's the opinion of Jay Krupin, a veteran labor relations attorney with the Washington, DC-based firm EpsteinBeckerGreen. Krupin says it's not clear exactly what will emerge early next year as NLRB examines issues related to union worksite access for organizing purposes. Given the new composition of the four-member board – which includes Obama's recess appointees Craig Becker and Mark G. Pearce, and Clinton appointee and Chair Wilma B. Leibman – Krupin anticipates that unions will be happier with the results than will management.

"We have a three-to-one supermajority of pro-union members of the board. They are implementing the parts of the (Employee Free Choice Act) that they couldn't get through the legislative process. The pro-labor leaning members of the board are taking that agenda and running with it," he says.

Krupin says he expects NLRB will hear arguments from organized labor that the no solicitation policy violates the National Labor Relations Act because it precludes unions from equal access to workers considering organizing. "Right now on the employers' premises you only hear from one side. The issue is the employers have a 'captive audience.' Our argument has always been the unions can meet with the employees any place else in the world," he says.

Improving union access to the worksite would be disruptive, and create an unfair and coercive environment, Krupin says. "The union doesn't represent the employees until the employees say they do. This is like having an insurance agent coming into your house until you sign the policy. If you want to sign the policy you will find them," he says.

Krupin predicts that NLRB will examine the parameters of the so-called 24-hour rule, which prohibits management from holding mandatory mass meetings with employees within 24 hours of a union vote. "Unions won't be able to speak to employees whenever they want, but I suspect it is going to be more of an equal access question," he says. "If an employer engages at any time, not just within 24 hours, with mass meetings with more than one employee on the premises, then the union should have the same access. It will be more equal access, rather than total access."

"The board's justification would be that since the employer has access to the employees, the unions should have the same access," Krupin says. "I'm making a supposition, but I'm pretty good at looking at this stuff and knowing the history. It's like the communications world, where stations have to give candidates equal access."

So what should hospitals do about it?

"They have to be aware of this and develop policies in anticipation of an equal access provision," Krupin says. "We are saying let's review what policies they have now to see where they sit. Then in anticipation of the changes in the rules, how would we change those policies, setting up a fire drill before the fire as to how we should change the policies."

It's also a good time to examine protocols. "If the union wants to come on the premises, and they have the right to come on the premises, how will they be escorted? What areas will they go to? What times can they come on the premises," Krupin says. "You have to establish preventive policies. Look at those issues in anticipation of the rules being changed. As the decisions come out of the board we can modify them, but we are getting a head start."

Healthcare unions have enjoyed tremendous success in the past few years, winning well over 70% of their organizing elections, but they are not invulnerable. Krupin says hospitals that interact effectively with employees have the best chance of defeating organizing efforts. "That means communicating with employees, comparing wages and benefits, making sure you deal with grievances and that other issues that employees have are handled effectively. If you do the things you are supposed to do and your employees understand the communication and the transparency, they may not like the decision but at least they know you are thinking about them and you are trying to do the right thing," Krupin says.

The problem, he says, is that hospitals wait too long to act. "There is a process to do this. Hospitals wait until their blood pressure is 190/140, their cholesterol is at 300, and they are 40 pounds overweight. Then they say 'Oh my goodness I will stop smoking then,'" he says. "Employees only go to unions when they feel the employer is not listening. Unions don't organize employees, managers do."