Many national unions have made it no secret that they view hospitals and other healthcare employers as a prime target for organizing efforts. Healthcare is a labor-intensive industry whose workers cannot be outsourced, but who must instead do their jobs in a frequently difficult and stressful environment. Furthermore, while the percentage of private sector workers in general who are unionized hovers at around eight percent, at present approximately 30 percent of hospitals have a unionized presence.
What is perhaps less understood is the means that many unions are now willing to use to attempt to get their way with the healthcare employers whom they target. Instead of trying to convince workers to vote for them in a secret ballot election conducted by the National Labor Relations Board, many unions seek to pressure an employer through the use of a so-called "corporate campaign". Union-sponsored corporate campaigns against healthcare employers are intended to embarrass the employers in the public eye by portraying them as some type of "evildoer" to be shunned.
Two recent cases provide vivid examples of what can only fairly be described as the "low-blow" punch thrown by some unions. In Kentov v. Brandon Regional Medical Center, arising in Tampa, Florida, the union became upset with the hospital for using non-union labor on a construction project. To exhibit its displeasure, the union conducted mock funerals outside of the hospital's entrance. The union had four people carry a coffin back and forth on the sidewalk, and accompanying these "pallbearers" was a person in a large "grim reaper" costume carrying a large sickle. During this procession the union blared funeral music and handed out literature that described allegations from state court lawsuits under the title "Going to Brandon Regional Hospital Should Not Be a Grave Injustice."
As these facts demonstrate, this union did not hesitate to attempt to scare patients and their loved ones as they sought needed medical care, in an effort to force the hospital to give in to the union's demands. But the union's conduct here crossed a legal line and, as a result, it was subject to an injunction issued by the federal courts ordering the union to cease and desist from this type of procession. The second case, Sutter Health v. Unite Here, received extensive publicity after it resulted in a large jury verdict against a union in July 2006. In this case the union wanted the hospital to help it organize employees working for the supplier of its bed linens. After the hospital refused the union's demand, the union sent a mass mailing to residents of the communities in the relevant marketplace. The postcard sent by the union stated that the hospital "does not ensure that 'clean' linens are free of blood, faeces and harmful pathogens. Protect your unborn. Choose your nursing center wisely."
After the issuance of this postcard, the hospital sued the union for defamation, trade libel and interference with prospective economic relations. Extensive pretrial proceedings ensued, culminating in a three-week jury trial. The jury returned with a verdict of $17.3 million against the union. The union promises an appeal.
In both of these cases, the hospitals subjected to attack were able to obtain judicial relief from the pressure exerted on them, but most healthcare employers, particularly "at-risk" hospitals, are well advised not to wait for the onset of these types of problems to plan a strategy. Although there is no single factor that inevitably makes a hospital likely to be subject to a corporate campaign, hospitals, particularly hospitals in large metropolitan areas, that have poor employee relations or poor community relations are more likely to be targeted by a union.
Healthcare employers at risk should act proactively. Steps that healthcare employers can take to prepare themselves for a corporate campaign include conducting an internal risk assessment evaluation, educating senior administrators and board members, educating the workforce about the difficulties involved in running a complex enterprise, planning for a public relations counteroffensive to rebut untrue information disseminated by the union, assigning responsibilities to senior administrators, ensuring that charity care can be proven, developing a legal strategy in the event that resorting to the courts is required and, finally, making a strategic judgment about the degree of the institution's commitment to fight if a corporate campaign begins.
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