lawyer with Keck Mahin & Cate, said hospitals that want to make the grade in a managed-care universe need to be flexible. Stickler recently represented the University of Illinois Hospitals and Clinics, Chicago, in successful negotiations with the Illinois Nurses Association.
"The continued struggles with the INA and their nurses aren't very satisfactory," Stickler said. "It's much better to work with them to resolve these issues."
The new contract allows the hospital to move nurses where they're needed, or they can be laid off with 30 days' notice. It also lets nurses delegate care responsibilities to less-skilled workers-or not delegate.
Pamela Towne of the INA said: "If (a nurse) doesn't know the background and training of unlicensed workers, she can't feel confident in delegating tasks to this worker. That threat to her license is recognized in this particular contract. That was something nurses felt strongly about."
The irony is that the new contract resulted in 80 additional registered nurse slots, compared with December 1992, when the hospital embarked on a restructuring plan that has been aborted.
The contract, covering 850 nurses, invites nurses into the budget process in coming years. It also contains explicit language saying INA members are not supervisors. "The University of Illinois does not fall under the National Labor Relations Act, it falls under a state statute," Towne pointed out.
Physicians in Florida are using that same tactic-relying on state supervision to escape federal restrictions-to improve their bargaining position against managed-care companies. In the current session of the state Legislature, the Florida Medical Association and the Federation of Physicians and Dentists are lobbying for a law that would let the state attorney general certify in a "no-action letter" that a physicians' network is pro-competitive.
"That letter will be renewed annually as long as the situation remains the same," said Chris Nuland of the Florida Medical Association. "That provides immunity under state-action doctrine so the federal antitrust officials don't get involved. Under federal antitrust laws, if the state is continuously supervising a marketplace, and says it's OK, then the federal government will not step in."
The FMA and the federation represent 2,000 members in Florida, most of them doctors. They want physicians to be able to form networks without incurring the wrath of antitrust enforcers. Managed-care organizations control such a large chunk of the Florida marketplace that physicians are placed at a disadvantage, Nuland said. "Therefore by unionizing and collectively negotiating, the union hopes to level the playing field."
Jack Seddon, director of the federation, said the big managed-care firms are "pushing doctors out of business and forcing them to practice by the numbers."
The doctors union, which is affiliated with the American Federation of State, County and Municipal Employees, has created a "third-party messenger system." Doctors considering managed-care contracts submit them to the union for review. The union tells them what parts of the contract are unfavorable. This skirts rigid antitrust provisions prohibiting doctors from bargaining collectively.
Rose Ann DeMoro, executive director of the California Nurses Association, sees the same trends in her state, perhaps the most heavily penetrated by managed care. "The physicians are blackballed if they speak out against these managed-care groups. Their power, their ability to use independent judgment, has been ripped away from them. We see more physicians organizing."
Organized labor, she thinks, is the only vehicle that's going to be able to speak out for patients as healthcare restructuring continues.
"A corporate model takes over a public sector field. Standards all of a sudden don't count. You have the financial markets able to redefine the standards of care. The only thing that stands between the patient and the financial markets is the union.
"It's the difference between prestige and power," DeMoro continued. Many professional people have been trained to think of themselves as autonomous free agents and to see unions as unworthy of interest. But now that powerful managed-care companies have turned doctors' autonomy into a disadvantage, they have no countervailing power to oppose the transformation of medicine in any organized way, she said.
People like doctors and nurses "would have phenomenal power if they were organized into bargaining units," DeMoro said.
Another factor leading to increased union interest may be that in the past, nurses dissatisfied with working conditions could simply move to another hospital. In a time when hospitals are shedding nursing labor and nursing graduates can't find jobs, that option is no longer available. So unhappy nurses have to stay, and, if they so choose, fight.
To maintain peace with their workers, lawyer Stickler advises, hospitals increasingly will need to work with labor organizations, especially the employees, to help them understand the cost pressures as well as the external pressures.
"It's imperative," Stickler said. "I still believe that where there are no labor relationships, hospitals are well served to learn these same lessons: communication; information; employee input; employee involvement; and good, collaborative working relationships.
All these are needed "especially during restructuring," he said. "Restructuring means change. Change means insecurity."