Conference of Catholic Bishops Issues "Guidance and Options" for Health Care Unionizing

Citing concern that neither “Catholic health care, the labor movement, or the Church has been well served by the status-quo with all of its conflict and contention,” the United States Conference of Catholic Bishops (USCCB) has issued a set of nonbinding guidelines to Catholic health care employers in the United States.

The USCCB intends its “Respecting the Just Rights of Workers: Guidance and Options for Catholic Health Care and Unions” (the “Guidance”) to lessen conflict by “strongly” recommending unions and employers enter into “Local Agreements” on questions of union representation.

The Guidance aims to provide “constructive ways to proceed” to ensure workers “have the right to choose to join or not join a union through a process which is free, fair and respectful of the roles and missions of Catholic Health Care and the labor movement.”

The Guidance consists of three parts. Part I is an introduction. Part II, “Common Mission,” contains the committee findings. Among them are that “conflict and controversy” between management and unions have not been in workers’ interests nor in support of the mission of Catholic Health Care ministry. Finally, Part III, “A New Paradigm,” sets out seven principles for a “fair and just” organizing model.

More than a Decade in the Making

The Guidance is the result of a collaborative process among leaders of several major unions and representatives of Catholic health care brought together by the USCCB more than a decade ago. In addition to Catholic Church and health care leaders, the guidelines were signed by AFL-CIO President John Sweeney, Service Employees International Union Healthcare Chair Dennis Rivera, and executives from the American Federation of Teachers and American Federation of State, County, and Municipal Employees.

In many communities, Catholic health care providers may be the largest employers and providers of services.

Seven Principles for “Fair and Just” Organizing

The Guidance’s “A New Paradigm” section sets out seven principles for a “fair and just” organizing model. The principles outline “appropriate conduct” for employers and unions to avoid “undue influence or pressure” on employees. These principles are meant to be part of the “negotiated ground rules and mechanisms in a written, enforceable Local Agreement” that applies directly to unions, employers, and their representatives. They are not intended to constrain the rights of individual employees.

The principles outline commitments, actions, prohibitions, and enforcement mechanisms under both broad categories, such as “Respect” and “Pressure-Free Environment,” and other more specific categories in defining actions to be taken or to be avoided. “Equal Access to Information” and “Truthful and Balanced Communications” define the parameters for communicating with employees, aiming for parity in the means of dissemination and volume of both written and verbal communications.

Written communications must be reviewed and approved in advance by both unions and employers. Employers are prohibited from requiring employees to attend meetings where unionization is discussed. Information must be confined to topics related to the advantages and disadvantages of union representation, and must be factual, accurate, balanced, and non-disparaging.

Prohibition on Negative Campaigning

Perhaps most notably, unions and employers are prohibited from engaging in “negative campaigning.” Unions may not state or imply that employees are subject to unfair wages, benefits or working conditions without union representation, raise unreasonable expectations of benefits from unionization, or make false promises or guarantees about improvements gained through collective bargaining.

Likewise, employers may not state or imply that wages, benefits or working conditions will worsen as a result of unionization, use information from union constitutions or by-laws to create fear about fines or expulsion, or artificially raise concerns about signing union authorization cards.

Local Agreement Prior to Organizing

The Guidance instructs the parties to prepare to enter into a Local Agreement before organizing commences. Both should agree to and act according to the principles and values of the Guidance. Once employees have expressed interest in representation, the union should notify the employer, and the parties should meet and develop the Local Agreement within a recommended 30-day period.

Unions must resolve any jurisdictional issues with other unions prior to beginning a campaign, and the parties should create a “clean slate” for employees to make their decision “based on truthful information in a pressure-free environment.” The Guidance specifically says that local issues and circumstances may lead the parties to consider “alternative means to the traditional method of triggering a union election (i.e., the signing of cards).”

Resolution of issues arising under the Local Agreement would be handled through a two-step process. First, a “Rapid Response Team” consisting of union and employer representatives with the power to speak for and bind each party would provide informal resolution. If that fails, enforcement of the Local Agreement would be delegated to a mutually agreed upon “neutral authority” with the power to determine a binding resolution of issues not previously reserved for the National Labor Relations Board.

Selection Procedure

The Guidance also addresses the union selection process, specifying that the union and employer mutually agree on a NLRB-supervised secret ballot election, “or another mutually agreed upon process” if the parties have entered into a Local Agreement and “are committed to avoiding lengthy hearings and delays.” Bargaining unit clarification issues, details of the election, and voter eligibility must be agreed upon “expeditiously.”

The Guidance’s “Honoring Employee Decisions” section specifies employers’ and unions’ conduct following the selection procedure. If employees choose no union representation, the union should cease campaigning and may not commence organizing activity within a mutually agreed period specified in the Local Agreement. If the employees choose to be represented, the parties immediately must begin good faith bargaining. If a union contract is not reached within a reasonable period, the parties will seek mediation assistance.

The Guidance also addresses the process for decertifying the union if employees no longer wish to be represented.

What It Means for Catholic Health Care Providers

The Guidance is a non-legally binding document. In part, it is a response to efforts by some unions to organize by means of corporate campaigns using negative publicity, political and community pressure, and other external forces.

While Catholic health care providers are free to disregard them, the guidelines carry significant weight in the Catholic Church’s health care ministry. Given the prominence of the unions involved, the rejection of lawful management practices in response to union organizing, and the explicit references to union authorization card signing, rather than being a neutral guidance for attaining “quality, affordable, accessible health care for all,” the guidelines look positively union-friendly.

Jackson Lewis attorneys are available to answer your questions about this Guidance and its implications for Catholic and other non-profit organizations. The Firm’s popular “How to Stay Union Free” programs highlight what employers can do to preempt corporate campaigns and other unionizing strategies that disrupt the workplace.