March 14, 2020
NOT FOR EXTERNAL DISTRIBUTION
SOURCE: Asheville Citizen-Times
AUTHOR: Brian Gordon
A union election is coming to Mission Hospital, and all sides – nurses, management, and union representatives included — will want their views on unionizing known before ballots are cast.
On March 6, nurses at Western North Carolina’s largest hospital submitted union authorization cards to the regional National Labor Relations Board, a move that precipitates a secret union election. If more than half of nurses who participate in the election vote in favor, the National Nurses United union will represent 1,500 Mission nurses.
In 2019, 70% of elections to unionize ended in favor of organizing, according to the NLRB. In each of the past four years, 23 days separated the petition from the election, a campaign window for stakeholders to advocate for or against unionization.
From employees wearing pins to management mandating one-on-one meetings with staff, questions often arise over what actions labor laws permits.
What's an unfair labor practice?
The National Labor Relations Act of 1935 sets proper conduct for unionizing campaigns, and regional NLRB employees follow this text to ensure fair elections.
The Mission nurse election will be overseen by the NLRB regional director in Atlanta and representatives from the Winston-Salem office. They will review any charges of unfair labor practices made against HCA and Mission management or National Nurses United and nurses. Anyone can file an unfair labor practice claim (forms can be found here).
The nation’s highest body on labor law is the NLRB’s five-seat Washington, D.C.-based board. Each board member is a presidential appointee who serves five-year terms. The current board has only three members, all Republicans appointed by Donald Trump. Similar to the Supreme Court, the board rules on challenges made during elections. Interpretations of labor law policy change over time as the board's ideology swings between Democrat and Republican appointees.
“There are shifts in the labor law, probably more than there are in most areas of law,” said Daniel Bowling, who teaches labor and employment law at the Duke University School of Law.
Most often, the national NLRB considers cases after the union election. The board can invalidate elections and require new votes if it decides the pre-election campaign was tainted by unfair practices. Last year, peoples filed more than 18,000 unfair labor practice charges nationwide.
To indicate union support, multiple Mission nurses have told the Citizen Times they wear red buttons with a “Vote Yes” message and a check mark. Bowling said putting on pins is generally protected free speech.
According to Eric Fink, an Elon University Law School professor, the employer can limit the size, number or placement of buttons for legitimate business reasons.
“In a hospital, they could make a safety argument,” Fink said. “The short answer is that nurses should be allowed to wear buttons, and management can impose reasonable restrictions for legitimate business reasons.”
And while wearing buttons is permissible, handing them out at work can be prohibited.
“The law distinguishes between solicitations and distributions,” Fink said. “Management has much more latitude in restricting distributions, especially in work areas, because it can be argued to be disruptive.”
Mandatory meetings with management
During a unionizing campaign, management can require meetings in either individual or group settings.
“They can have as many as they want,” Bowling said, up until 24 hours before the election.
At these meetings, no labor representative is entitled to be present. Managers cannot make promises of special awards or threats of retribution. They can share information on union dues and explicitly encourage workers to vote against the union.
"Pretty much anything goes unless what they say is interpreted by reasonable employees as a threat," said UNC School of Law professor Jeffrey Hirsch.
Labor law experts say the line between a threat and a fact can be ambiguous.
“The real tricky area is distinguishing threats versus factual descriptions of what's happened,” Fink said. The Elon law professor gave two hypothetical situations to illustrate this difference: Managers who tell workers their jobs will be moved abroad if they unionize versus managers who tell workers how another company nearby moved jobs abroad after workers unionized. The first example is a direct threat and a clear unfair labor practice. The second example could arguably be interpreted as a veiled threat or just a simple stating of a fact. Fink said, "A lot of it depends on the context, the framing."
If workers believe a threat or promise was made during a meeting, they can file an unfair labor practice claim.
Solicit off work time
Like any business, Mission can bar union representatives from entering its premises, especially if the hospital consistently prevents other outside organizations from entering to solicit support.
Hirsch said employees, even when off-duty, generally have the right to promote a union effort, as long as they avoid doing so in work areas or on work time.
"Hospitals get a little interesting on this,” Hirsch said. “The (NLRB) tends to be very sensitive to employers' desires to keep solicitation away from patients.”
An internal Mission email sent to staff details Mission's solicitation polices. The message was confirmed to the Citizen Times by a Mission nurse who received the email. The message stated: “We understand that we have a number of off-duty employees who are splitting up into small groups and around units, engaging in solicitation and distribution of union-related items to working staff."
The message continued that employees cannot be on either end of a soliciting conversation during work time, and that employees should seek to stop the interaction. If the interaction continues, the message encourages employees to document and report the conversation to management.