Healthcare employers facing aggressive organizing scored a victory last week with a federal labor ruling that blocks certain nurses from joining the rank-and-file.
For hospitals and health systems, the new ground rules will likely emerge as a flash point in organizing campaigns and contract talks -- creating new headaches and legal challenges for employers already grappling with organized labor.
Unions, which anticipated a ruling unfavorable to labor, staged protests in the months leading up to the decision, vowed to make union eligibility an issue in upcoming elections and threatened strikes should employers seek to oust or bar nurses from organized labor.
The long-awaited ruling is considered a win for healthcare employers.
In a 3-2 vote that split along party lines, the National Labor Relations Board -- which oversees union elections and bargaining -- found that so-called charge nurses qualify as management, though registered nurses who hold such jobs on a part-time basis were not deemed supervisors and remain eligible to join unions.
It's unclear how many of the nation's 2.4 million registered nurses will be affected by the decision. Charge nurses typically assign colleagues' workload and monitor patients' care.
Labor law experts said the decision, though it did not affect as many nurses as unions feared, will clearly exclude previously eligible nurses from joining unions. "Healthcare unions have been one of the few areas where labor has been generating some momentum in recent years," said Paul Clark, head of Pennsylvania State University's Department of Labor Studies and Industrial Relations. Clark, who has worked on labor-funded research, studies healthcare organizing and bargaining. Organized labor in recent years has invested heavily in building membership and clout among healthcare workers. "I don't think the labor movement sees this as a mixed decision, or that it has any kind of silver lining," Clark said.
Healthcare industry executives said the decision brought welcome clarity to the long-debated question of nurses' status as either management or professional employees. "The National Labor Relations Board has recognized the vital and special role charge nurses play in providing high-quality patient care," said Pamela Thompson, chief executive officer of the American Organization of Nurse Executives, a professional group affiliated with the American Hospital Association, in a statement.
Unions denounced the newly established criteria and vowed to fight the decision in Congress and the courts, the latter a familiar battleground for employers and unions wrestling over nurses' rank as supervisors (Aug. 21, p. 14).
Nancy Schiffer, associate general counsel for the AFL-CIO, said she expects legal fights to continue as unions and employers grapple with who's in and who's out under the NLRB's new definition of supervisor. "I think it becomes litigate, litigate, litigate."
Last week's NLRB decision -- settling a dispute over a United Auto Workers election at 233-bed Oakwood Heritage Hospital, Taylor, Mich. -- was one of three issued Oct. 3 that stemmed from the Supreme Court's 2001 rebuke of the labor board's prior effort to settle the question: Who's a boss? At issue was whether nurses with responsibility to assign co-workers or direct colleagues did so using their own judgment, rather than following written instructions or orders from a supervisor. Federal labor law defines managers as those with the power to undertake any of a dozen supervisory duties -- such as hire, fire, discipline, assign or direct other employees -- using independent judgment.
The politically appointed labor board's majority found Oakwood Heritage's 12 full-time charge nurses qualified, but that the hospital's 112 rotating charge nurses did not because officials failed to show the part-time supervisors spent "a regular and substantial portion of their work time" on management duties.
The UAW cannot appeal the labor board's decision because it is a case concerning representation, attorneys said. However, the new criteria may become grounds for an unfair labor-practice dispute; such cases can be appealed to federal courts, and ultimately the U.S. Supreme Court, after being heard by the NLRB.
Barbara Medvec, chief nursing officer and senior vice president of the hospital's parent, Oakwood Healthcare System, said the ruling validated the Dearborn, Mich.-based system's bid to count charge nurses as managers, but called the board's "silence" on the part-time charge nurses puzzling.
Wilma Liebman and Dennis Walsh, the NLRB's two dissenting votes and only Democrats, rejected the decision's management criteria and warned it threatened to create a sweeping new class of workers who have "neither the genuine prerogatives of management, nor the statutory rights of ordinary employees." Just how far-reaching the decision will be won't be immediately known, the dissenters wrote. The consequences hinge on how the board applies its ruling, the outcome of court challenges and employers' reaction, they said.
Rod Roca, a 15-year union veteran and full-time charge nurse at 159-bed Claxton-Hepburn Medical Center, Ogdensburg, N.Y., stands to lose his place in the New York State Nurses Association after last week's ruling.
Roca, who is president of his hospital's bargaining unit, rejected any suggestion that his job as charge nurse puts him squarely among management, saying he lacked even the most elementary authority, such as the ability to send a colleague home sick. Charge nurses make professional judgments and "to somehow twist that to say you are a manager" with control over others is wrong, Roca said.
At the New York State Nurses Association's annual meeting last week, Anne Bove, the union's delegate assembly president, echoed several labor leaders' assertions that unions give nurses necessary protection to push for changes in working conditions and hospitals' quality improvement efforts. "Because of this decision, when charge nurses speak up about unsafe conditions, they could lose their jobs," Bove said in a written statement. But AONE's Thompson rejected union claims that curbing labor's reach among nurses would harm patient care.
Healthcare insiders said last week it wasn't clear yet how the newly shifted line between boss and employee would affect nurses' union status.
The six-hospital Daughters of Charity Health System employs 2,000 registered nurses; seven are employed as full-time charge nurses, said Stephanie Battles, the Los Altos Hills, Calif.-based system's vice president of human resources. Battles said charge nurse duties rotate among nurses as a way to develop leadership. The system, whose nurses are also represented by the CNA, will wait until the dust settles before considering how, if at all, the ruling may affect its nurses, and then system officials will work with unions should changes be necessary, Battles said.
"We're still in the process of evaluating the impact it would have on our organization," said Carolyn Carter, a spokeswoman for 13-hospital St. Joseph Health System, based in Orange, Calif. The California Nurses Association and the Staff Nurses Association at the system's 325-bed Santa Rosa (Calif.) Memorial Hospital represent St. Joseph nurses.
Susan Harris, a union-avoidance consultant with the Burke Group, said it is unlikely hospitals will pull organized nurses from unions as a result of the decision. While it may be legal, such a move may be too culturally disruptive, said Harris, a nurse and former American Nurses Association board member.
Who handles charge nurse duties and how often varies from hospital to hospital. "Charge nurse is one of those terms that means different things in different organizations," she said. Harris advises clients to make clear decisions about which charge nurses rank as managers. The labor board's recent decision set a clearer standard for executives to use when creating a chain-of-command among nurses, she said.
The rule did set out new criteria, but left gray areas that labor and healthcare insiders said will be settled as unions organize and bargain with individual hospitals. "The practical implications will vary," depending on the hospital and bargaining unit, said Joseph Torres, a Chicago labor attorney with Winston & Strawn. "There are going to be questions around the margins."
Unions continued to push last week for promises from employers that nothing will change among organized workers despite tighter membership criteria. Some unions began lobbying successfully for such concessions earlier in the year out of fear employers may oust nurses or alter their jobs to remove them from unions.
The Health Professionals and Allied Employees won union rights for charge nurses in nine out of 10 private-sector contracts, and is negotiating terms with the remaining employer, said Ann Twomey, president of the 11,000-member New Jersey union. Twomey said the union sought guarantees on three fronts to prevent losing membership: no supervisor assignments to rank-and-file members; continued recognition for nurses regardless of changing federal laws; and no supervisors assigned to rank-and-file jobs. "This to us was a strike issue," she said.
In September, the CNA negotiated guarantees in a five-year contract with Kaiser Permanente that rank-and-file nurses will remain so regardless of how federal labor laws changed.
Mike Griffing, collective organizing director for the CNA and its national organizing arm, the National Nurses Organizing Committee, said the union plans to approach California health systems where it represents nurses seeking similar promises.
Kaiser's tentative contract with the California nurses union followed the system's pledge to honor union membership in a letter of understanding with Kaiser's 39-union labor coalition, said Anthony Wagner, vice president of 28-hospital Kaiser's office of labor management partnership.
Unions, including the California nurses union, have promised to picket employers that oust charge nurses from their membership. The CNA said 30,000 of its members had agreed to strike should their employers enforce the new eligibility criteria.
To date, unions and employers appear to have had little trouble agreeing to contracts that leave nurses' union eligibility as is.
"It certainly wasn't contentious with us," Kaiser's Wagner said. The issue was not a sticking point in stalled talks that resulted in a one-month strike at 541-bed Robert Wood Johnson University Hospital, New Brunswick, N.J., by the United Steelworkers of America Local 4-200, which represents 1,300 RNs. The hospital and union officials agree the issue was settled smoothly at the bargaining table.
Whether tension over such concessions will rise in light of last week's ruling remains unclear, labor leaders and experts said. "Certainly when either side has something that they know the other side desperately wants, it's just skillful bargaining to make sure you get something in return," Penn State's Clark said.