A lame-duck administrator at a small Montana hospital has ignited a labor dispute that may have national repercussions for hospitals and nurses.
The administrator's hospital is believed to be the first healthcare employer to attempt to use a recent U.S. Supreme Court ruling to oust a union representing its registered nurses.
The union has filed unfair labor practice charges against the hospital that eventually could end up in federal court, which is something organized nursing can't afford because it doesn't want the idea catching on at other hospitals.
An estimated 20% of the approximately 1 million full- and part-time registered nurses working in acute-care hospitals belong to unions.
"The (Supreme Court) decision provides a potential argument for any employer to challenge the composition of a bargaining unit," said labor attorney G. Roger King with Jones, Day, Reavis & Pogue in Columbus, Ohio. "It's not surprising that this (Montana dispute) has happened. I anticipate more of the same. No question."
In a labor dispute involving three licensed practical nurses at an Ohio nursing home, the high court ruled on May 23 that nurses who supervise lesser-skilled employees aren't protected by the National Labor Relations Act because they're acting in their employers' best interest (May 30, p. 4).
The act protects workers' rights to unionize and engage in other collective actions regarding working conditions. The act doesn't apply to supervisors.
The high court's broad definition of who qualifies as a supervisor and, therefore, isn't protected by the law prompted labor organizations to warn that any worker who performs even the smallest of supervisory functions could be stripped of his or her union organizing rights under the court's interpretation.
It was the court's ruling that provided the incentive for 86-bed Bozeman (Mont.) Deaconess Hospital to attempt to oust the Montana Nurses Association as the collective bargaining agent for the hospital's approximately 90 registered nurses, said Bozeman Administrator Gary Kenner.
"We looked at the ruling and evaluated the impact on our facility," Mr. Kenner said. "Our interpretation and that of our legal counsel was that our nurses no longer qualified for union representation under the decision."
Under the hospital's team approach to nursing care, registered nurses lead teams of caregivers, including LPNs and nursing aides, Mr. Kenner said. And, the RNs' supervisory duties are performed not as intrinsic functions of being registered nurses but are done at the direction of the hospital as their employer, he said.
Therefore, under the high court's ruling, the hospital's nurses aren't protected by the National Labor Relations Act because they're supervising lesser-skilled workers in their employer's best interest, Mr. Kenner said.
Accepting the opinion of Mr. Kenner and the hospital's outside legal counsel, Bozeman's board of trustees unanimously voted on July 27 to stop recognizing the Montana Nurses Association as the nurses' collective-bargaining unit on Oct. 31. That's when the hospital's latest two-year union contract with the nurses expires.
Upon the expiration of the contract, Bozeman's registered nurses will be considered regular employees of the hospital, Mr. Kenner said.
Mr. Kenner said there's no financial motive behind ousting the union. After the nurses are blended in with the hospital's other employees, they'll maintain their current wage and benefits package and be eligible for cost-of-living and merit wage increases on Jan. 1 like everyone else, he said.
"This is being done in the best interest of the hospital," Mr. Kenner said. "Our philosophy is to deal directly with RNs or anyone else. We don't need a third party to decide how we interface with our own employees."
However, Mr. Kenner won't be around to watch the hornet's nest he's stirred up. He's leaving on Sept. 1 to start his own consulting company. He's been the top executive at the hospital for the past eight years.
Mr. Kenner said he submitted his resignation to the board in June, and his leaving has nothing to do with any adversarial relationship he's had with the Montana Nurses Association.
"This was the right thing to do whether I'm here or not," he said.
The state nursing association has represented Bozeman's nurses since the mid-1970s, and it's the only collective-bargaining agent dealing with the hospital. None of the hospital's other employees are unionized.
Not surprisingly, the association is aggressively opposing Bozeman's actions as well as pinning the blame specifically on Mr. Kenner. It's describing the attempted ousting as a "parting shot" by Mr. Kenner in a long-running feud with the association over nurses' working conditions.
"To say every nurse there is a supervisor is a transparent attempt by the hospital to get rid of the union," said Todd Thun, a labor relations specialist with the Montana Nurses Association.
Mr. Thun said Bozeman's nurses don't perform any of the key duties of a supervisor as defined by the National Labor Relations Act, such as hiring, firing or disciplining other employees.
The union responded to the hospital's action by filing unfair labor practice charges against Bozeman earlier this month with the Seattle office of the National Labor Relations Board. Mr. Thun said the NLRB has assigned an attorney to the case and will be launching an investigation of the charges shortly.
Whatever the regional office decides, the decision most likely will be appealed first to the NLRB in Washington and then to federal court, Mr. Thun and Mr. Kenner predicted.
The American Nurses Association in Washington is aware of the Montana dispute and is offering its technical assistance to the Montana association, said Kathryn Scott, the ANA's labor communications specialist.
"The hospital reacted very quickly and very seriously to the Supreme Court's decision, and we will do the same," Ms. Scott said. "This is exactly what we predicted would happen."
She said the ANA is collecting additional information about hospitals using the court's decision to void union contracts and thwart organizing efforts.
Ms. Scott also said the ANA may seek federal legislation that would clarify the definition of a supervisor.