NLRB confirmations pending

Healthcare employers are wary while unions representing healthcare workers are hopeful as the U.S. Senate appears poised this week to confirm two Obama administration appointees to the National Labor Relations Board, thus moving toward filling all five board seats. Two Republican nominees also are also expected to be confirmed at a later date.

The board has been operating with three members since January 2012. Senate Republicans had blocked the confirmations until reaching deal with Democrats this month to unfreeze some of President Barack Obama's executive branch appointments in return for Senate Democrats dropping plans to limit filibusters.

The confirmations would remove the legal doubts about NLRB decisions made since Obama's two NLRB recess appointments in January 2012.

In January 2013, the U.S. Circuit Court of Appeals in Washington, D.C., ruled that those appointments and other Obama recess appointments were unconstitutional. That case, now on appeal before the U.S. Supreme Court, called into question a number of NLRB rulings affecting the healthcare industry. The three-member board, which included the two recess appointments deemed illegal and chairman Mark Pearce, made more than 200 rulings during that period, according to NLRB officials.

Prime Healthcare Services, a 19-hospital health system based in Ontario, Calif., told union officials representing Prime workers that it would not comply with two NLRB rulings made in 2012, involving the two recess appointees. Other healthcare employers also ignored labor-friendly NLRB decisions made during that period.

Prime had ignored a December ruling involving Piedmont Gardens, a continuing-care center based in Oakland, Calif. The board had ruled that the center's operators must provide internal investment documents to union officials. Prime claimed the decision was invalid.

Mary Schottmiller, Prime's assistant general counsel, said she expects the NLRB to reissue its past rulings, including the Piedmont Gardens decision, to prod employers to comply. She doesn't expect Obama's new appointments to have a major effect.

The NLRB oversees a number of labor-union issues under the National Labor Relations Act, including union certification and elections, compliance with labor contracts, and what types of workers are eligible to unionize.

This month the Obama administration nominated Kent Hirozawa and Nancy Schiffer to the board, replacing Sharon Block and Richard Griffin, the two recess appointees who were challenged by Senate Republicans.

Hirozawa currently serves as chief counsel to NLRB's chairman, while Schiffer is the former associate general counsel at the AFL-CIO. She told the Senate Health, Education, Labor and Pensions Committee last week that she would be impartial in deciding on labor issues. Republican nominees Harry Johnson and Philip Miscimarra would round out the five-member board upon confirmation.

A fully constituted NLRB could benefit healthcare employers by reducing litigation costs, Schottmiller said.

But those savings could be offset by increased unionizing activity, said Michael Moschel, a partner with Nashville-based law firm Bass Berry & Sims.

One case that labor wants to take up with the newly constituted NLRB involves the UPMC health system in Pittsburgh. Lawyers representing the Service Employees International Union said UPMC disregarded a previous settlement in a case involving allegations that the hospital system violated more than 80 federal labor laws. SEIU's complaint included concerns about spying on employees and disciplinary action against workers for union activities.

Jonnee Bentley, SEIU assistant general counsel, said having the NLRB operating at full strength could speed up a process that's been slow, with weak penalties.

Another issue that unions hope to address is whether medical interns and residents working at hospitals can be unionized. Deborah Burger, co-president of the 180,000-member National Nurses United union, said they should be allowed to unionize. She cited a 1999 NLRB decision involving Boston Medical Center that ruled interns and residents were employees. That ruling was overturned in 2004 by the NLRB.

Burger also hopes a 2006 case involving Oakwood Healthcare, a four-hospital system based in Dearborn, Mich., will be reconsidered. The NLRB issued a ruling restricting the eligibility of nursing supervisors for union membership, a setback for the NNU.

But John Borsos, secretary-treasurer for the National Union of Healthcare Workers, isn't that optimistic. He said the NLRB has failed in its mission to protect workers' rights because its enforcement arm hasn't enforced penalties when employers violate the law. “It's less about just having five people on the board,” he said. “It's a dysfunctional institution.”

Follow Ashok Selvam on Twitter: @MH_aselvam