Notes On: A World without the Employee Free Choice Act; Certification Elections in the Hospital Industry
Arnold, Edwin, Bain, Trevor, Labor Law Journal
The celebration in 2010 of the 75th anniversary of the passage of the National Labor Relations Act (NLRA) did little to calm the debate over labor law reform. Scholars and practitioners have for many years depicted the NLRA as a product of the Great Depression and the New Deal that responded to it.1 Many have concluded that the NLRA does not effectively protect workers' right to organize and that it does not promote the institution of collective bargaining.2 Unions and businesses continued to hammer that point throughout the Great Recession and the election of Barack Ob ama. Labor law reform, packaged as the Employee Free Choice Act (EFCA) and introduced in three previous Congresses, has emphasized union certification and the process of bargaining of an initial agreement.3
In 2010 Congress failed to pass the EFCA for a fourth time and there is little expectation that Congress will change its mind in the near future. This does not mean, however, that unions must look forward to continued decline in their membership. The historical evidence from the Great Depression indicates the possibility of a more hopeful scenario, given the right combination of union leadership and economic circumstances. The recent success of unions in organizing hospital workers supports this possibility.
Beginning in 2008, employment in the healthcare industry is expected to increase about 22 percent through 2018, compared with 11 percent in general and about 10.1 for hospitals. Hospitals make up 1.3 percent of the health care establishments, but employ 35 percent of all employees in the industry. 4 Union density in hospitals grew from 13.6 percent in 2001 to 15.3 percent in 2008. (See Table 1) The percentage of union certification wins in hospitals was more striking in the face of employer opposition and conflicting decisions between the National Labor Relations Board (NLRB) and the Supreme Court regarding the determination of bargaining units and the designation of supervisors. Hospital certifications increased by about twenty-four percent (59.2-83.1) between 2001 and 2008. During the same period, certifications for Total Industry, excluding hospitals, increased by seven percent (52.0-58.5). (See Table 2) The percentage of hospital union wins in landslide elections, in which the union received at least sixty percent of the votes cast, increased by about half of that, twelve percent (68.5-80.5). At the same time the over-all increase for all unions for the same years was about seven percent (49.9-57.1).
II. The Determination of Bargaining Units and Supervisors
In 1989, the NLRB used its rulemaking power to craft new rules for health care bargaining units that would apply only in acute care hospitals (those with an average hospitalization of less than 30 days). Under the new rules, there could be eight bargaining units for employees. The eight bargaining units are: all registered nurses; all physicians; all professionals except for registered nurses and physicians; all technical employees; all skilled maintenance employees; all business office clerical employees; all guards; and all nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards.5 The NLRB's rules on the determination of bargaining units were challenged by the American Hospital Association.6 However, the Supreme Court upheld the Board. As a result, bargaining units in acute care hospitals would be more homogenous in terms of skill levels and job classifications than in other segments of the health care industry or in other industries such as manufacturing.
Nurses make up about 28 percent of the employees in hospitals7, and organizing them is especially important to unions. Nurses are held in high regard by other employees, and they could be very influential with unorganized workers. There have been significant legal challenges regarding the organization of nurses. …