Supreme Court NLRB ruling has hospitals wary

Hospital systems will be closely watching how the National Labor Relations Board handles hundreds of labor dispute cases it must reopen in the wake of a U.S. Supreme Courtt decision last week.

The NLRB cases that will be reconsidered include disputes over what employees can say about their employers on social media sites and how much freedom workers have to openly criticize their employers in front of customers, including patients. The NLRB also will have to re-decide the July 30, 2012 decision in Banner Health System and James A. Navarro, in which the board concluded that the hospital could not enforce a policy that forbade an employee from discussing an ongoing misconduct investigation.

The Supreme Court ruled unanimously in National Labor Relations Board v. Noel Canning that President Barack Obama lacked the constitutional authority to unilaterally appoint three people to the five-member labor board during a Senate recess in January 2012. Canning is a beverage distributor who protested an NLRB order to honor a union agreement by arguing that the NLRB lacked a quorum to make decisions since three of its members were appointed illegally.

Obama since has been able to win Senate confirmation of his appointees and the board has a full complement of three Democratic appointees and two Republican appointees. But last week's ruling means the board will have to reconsider hundreds of cases that were decided by a board with three invalidly appointed members. Many of the board decisions are up on court appeal and will have to be remanded to the NLRB for full hearings.

It's not yet clear how many cases will be affected by the invalidation of the three Obama-appointed NLRB members—Sharon Block, Richard Griffin and Terence Flynn. Estimates ranged from the low hundreds to up to 1,400 individual cases, with some still pending in federal appeals courts.

“We hope the NLRB will reissue decisions in these cases quickly for the sake of the working families affected,” said Mary Kay Henry, president of the Service Employees International Union, the union representing the largest number of healthcare workers.

Experts say it doesn't appear likely that the NLRB now will come to different conclusions in cases that favored employees. But it remains to be seen if the NLRB will take a closer look at past cases that were decided in employers' favor. “What will be very interesting to see is if the board rubber-stamps these or if it will dive into these issues to push its agenda,” said Michael Asensio, a labor-management attorney who represents employers with Baker Hostetler in Columbus, Ohio.

In particular, hospital officials will be keenly interested in how the NLRB construes controversies involving employee speech. Virtually every hospital has policies governing what front-line providers, including nurses and doctors, can say and do. That's become a critical issue as systems try to achieve high patient-satisfaction scores that can guarantee better payments from insurers. But such policies can be seen as interfering with workers' rights to talk about workplace conditions and union organizing.

“It is the intersection between quality, safety and employee engagement with legitimate business and work rules,” said K. Bruce Stickler, a labor-management attorney with Drinker Biddle & Reath in Chicago who has worked as labor counsel to hospitals and the American Hospital Association. “The biggest issue from my perspective is now there is uncertainty.”

There also was uncertainty among the Supreme Court justices, even though the opinion was technically unanimous. A combative majority decision written by Justice Stephen Breyer ran to 54 pages, while an equally assertive minority concurrence by Justice Antonin Scalia came in at 49 pages. The two opinions parsed the definitions of the words “happen” and “the,” probed the original intent of the Constitution's recess-appointment provision, and surveyed every recess of Congress since the first one on Dec. 23, 1800.

Breyer's majority opinion found that the four-day recess when the three NLRB members were appointed in 2012 was too short to be considered a true recess, which must be at least 10 days—a fresh interpretation of the Constitution blasted by the constitutional originalists in Scalia's concurring minority.

The result, Scalia wrote, is that future presidents will be able to use Senate recesses of more than 10 days in the future to unilaterally appoint officials of government boards and agencies, including some that affect healthcare.

For instance, former CMS Administrator Dr. Don Berwick was appointed by Obama in a controversial recess appointment in 2010 after Senate Republicans blocked his confirmation.

“The court's decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates,” Scalia wrote.

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