Healthcare Unions Eye Gains in 2014

The five-member National Labor Relations Board is sharply pro-labor, and could provide favorable rulings that will make it easier to organize next year. Expedited elections are "the biggest concern that employers should have," says one expert in labor and employee relations.

The uncertainty and shifting landscape in the healthcare industry continues to favor organized labor's efforts to unionize hospital workers, and there is no indication that the trend will slacken in 2014.

"We have seen a tremendous increase in union activity and petition activity since mid-summer," says James Trivisonno, president of Detroit-based IRI Consultants, which tracks organized labor activity in the healthcare sector for the American Society of Healthcare Human Resources Administration.

"The catalyst is change as a result of the Affordable Care Act. Hospitals are scrambling for ways to reduce costs and improve processes. Those translate into change. People don't like change. Even if it doesn't result in cost reduction, the thinking is it's my job and the way I do it is changing. I don't understand it unless it is communicated properly. I liked the old way we were doing things even though it was inefficient, and I was used to it and that is the way we did it for 10 or 20 years. Unless properly implemented and executed, change can result in uncertainty. Uncertainty leads to poor quality and turnover or they get a union to promise that it won't happen again."

IRI's 2013 Labor Activity Report for ASHHRA found that:

• 36% of this year's survey participants reported having unionized employees. That's a 6% increase from the 2012 survey. Healthcare service workers and other non-professionals and nurses are the most commonly targeted employees.
• Unions' success in organizing healthcare continued with more than 68% of representation elections resulting in union recognition in the first six months of 2013.
• The Service Employees International Union (SEIU) won 55% of its representation elections in healthcare in the first six months of 2013. The union was involved in more elections than any other union, accounting for more than 40% of all representation elections held in healthcare in the first six months of 2013.
• The American Federation of State, County and Municipal Employees (AFSCME) won 57% of its elections in healthcare in the first six months of 2013.
• National Nurses United (NNU), which won 100% of its elections in the first six months of 2012, had limited election activity in the first six months of 2013. However, the union continues to grow through organizing and acquisitions of other nurse unions, and continues to push an active legislative agenda in many states and Washington, D.C.
• The states with the highest number of representation elections filed to represent healthcare employees were (in order): Pennsylvania, California, New York, New Jersey and Ohio.

Trivisonno says the makeup of the five-member National Labor Relations Board and its advisory staff under President Barak Obama is also sharply pro-labor, and could provide favorable rulings that will make it easier to organize.

"Look for NLRB go back to the rulemaking and look for expedited elections," Trivisonno says. "That is the biggest concern that employers should have. When you get a petition you have to communicate as an employer the implications and consequences of unionization. If you only have 10 to 14 days to communicate your message to thousands of people, it is going to be extremely difficult, particularly because you can't shut the place down with healthcare. We have had situations with six months and barely prevailed. I don't know how we are going to do it in two weeks."

In addition, the NLRB will review dozens of decisions it made from 2008 to 2010 when the board contained only two members owing to Republican objections to Obama's candidates. The U.S. Supreme Court in Process Steel vs. the NLRB in 2010 ruled that the two-member NLRB did not have the authority to decide cases, so many of those cases will be reviewed again by the five-member board.

With the current pro-labor makeup on the full board, Trivisonno says "there are a bunch of cases lined up that they are waiting to hear and they will overturn previously decided cases and change the way the pendulum swings."

While much of what happens at the federal level is beyond the control of most hospital executives and administrators, Trivisonno says steps can be taken to deflect union organizing efforts. It starts with being proactive and communicating your hospital's stance on organized labor and why you oppose it.

"You have to assume that any time you implement any change or cost reduction you are also creating uncertainty," he says. "Unfortunately a lot of employers wait until that change is about to occur before they communicate with employees. You have to explain it well in advance through business literacy what the environment is and where you are in the marketplace. It is about being proactive in communication and then creating a compelling case for why you have to make the changes you do."

Trivisonno says unionization efforts are rarely about wages and hours.

"The union turns it into treatment and respect," he says. "They haven't treated you properly. They don't respect you enough to give you a pension that is going to support you when you retire. That is how they flip it. They turn it from a rational issue to an emotional issue and that is in their wheelhouse. Without the emotion the union's got nothing."

He says unionization drives fall short when they run up against hospitals that have spent years building trust and communication between leadership and staff.

"Create a culture where people say 'Hey, I'm good. My problems are being solved. They're listening to me.'You can't do that overnight," he says. "The union messages sort of clang rather than ring true – to use a bell analogy – when you have a situation where someone says 'that doesn't sound right. I know this guy. He wouldn't break that way.' So for those organizations that try to suddenly overnight create this communication mechanism and engagement mechanism it becomes much more difficult."

With all the change occurring in healthcare, Trivisonno says hospital leadership should just assume that at some point they will face some sort of organizing effort.

"Be prepared. Make sure that your management team is ready because the unions are not backing off. There are three more years with this administration in Washington and now that they have a full board complement they are coming," he says.

"Most employers' positions are very rational. Talk about it from orientation all the way through and make sure your managers have the skills, because this is a subject that people often have different opinions on. Managers don't like walking into a room where there could be conflict. So having them comfortable with the issue and seeing that they have their little elevator speech about the organization's position on unions is essential."

"You should be talking proactively with your staff about your positions on unions. People are afraid of talking about the 'U' word. The thinking is that if we talk about unions we will stimulate union activity. Wrong! It's like talking to your children about drugs and sex. You have to get out there and get ahead of it."