Spoke to an attorney today who had some interesting things to say about what the near future holds for unions wanting to gain access to private property. Make that alarming things if you’re an employer. Make that especially interesting/alarming if you happen to own or operate a medical facility.
Steven M. Swirsky, an attorney in the labor and employment practice of EpsteinBeckerGreen, took the time to talk to me about an e-mail alert I got from his firm saying the “new Obama Labor Relations Board has signaled that it will likely be granting union organizers the right to enter a healthcare facility’s premise to conduct union-organizing activity.”
That alert was based on this NLRB call for amicus briefs to help the board rethink how it rules on employers’ rights to limit union access to their private properties. For an even clearer understanding, here’s the NLRB’s press release about its call. The deadline for submissions, by the way, has just been pushed to Jan. 7.
The Supreme Court has said in the past that employers have the right to limit access to their properties so long as they don’t discriminate. The NLRB wants to rethink the legal definition of “discriminate.”
The problem is, says Swirsky, “you have to think about a hospital or rehab or nursing-care facility like you would a shopping mall or department store. There are areas, like the lobby or parking strip or front entrance, that are always open to the public. So now, if a hospital allows Girl Scouts to come in, will they then have the right to say they don’t want the Teamsters or the Teamsters don’t have the right to picket … in their lobby?” Based on every other ruling by the NLRB since President Obama has taken office, he says, this will likely not come down on the side of emplolyers. Swirsky thinks this’ll probably be decided before the summer.
The issue is complicated and involves a lot of legal cases and tangents, so rather than try to interpret, here are some links: one to an alert by an editor with HealthLeaders Media, another to an alert by Swirsky’s firm on what all employers should be doing to prepare for this, another to an alert by employment law firm Littler, another to a link-filled legal rundown by Labor Relations Today of everything under consideration and, finally, to a whole rundown of “The Next Phase of the Employee Free Choice Act: Union Organizer Access to the Business” — or “son of EFCA,” or “grandson of EFCA,” or whatever they’re calling it now — by EFCA info.org.
According to Swirsky, this call for amicus briefs “gets at the heart of achieving EFCA without EFCA” and even includes an intent by the NLRB to re-examine its “registered guard” statute, which may lead to unions having access to employees’ e-mail as well.
So what are you supposed to do? Says Swirsky, “Look very carefully at your policies and how they’re enforced” to make sure you’re not discriminating against unions. Are employees allowed to distribute fund-raising solicitations for Johnny’s soccer team? Then you’ll probably have to grant unions the same physical and e-mail access. Do you enforce your limited-access rules only when unions want to organize? “Then the board will look at this and see discrimination,” he says.
How people learn about these rules, how they sign off on these rules, “how thoroughly managers are trained about these rules and why they exist, and what the consequences are if they don’t follow them … you’ll need to think of everything,” Swirsky says.