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FottlerMyronDFr_2008_14ManagingWithOrganiz_HumanResourcesInHealt.pdf
MANAGING WITH ORGANIZED LABOR
Donna Malvey, PhD
CHAPTER
14
359
Learning Objectives
After completing this chapter, the reader should be able to
• address the relationship of organized labor and management in healthcare,
• distinguish the different phases of the labor relations process, • describe the evolving role of unions in the healthcare workforce, • examine legislative and judicial rulings that affect management of
organized labor in healthcare settings, • review emerging healthcare labor trends, and • consider the potential impact of the Internet on the labor–management
relationship.
Introduction
The labor relations process occurs when management (as the representative for the employer) and the union (as the exclusive bargaining representative for the employees) jointly determine and administer the rules of the workplace. A union is an organization formed by employees for the purpose of acting as a single unit when dealing with management about workplace issues, and hence the term organized labor. Unions are not present in every organization be- cause employees must authorize a union to represent them. Unions typically are viewed as threats by management because they interfere with manage- ment’s ability to make and implement decisions. Once a union is present, management may no longer unilaterally make decisions about the terms and conditions of work. Instead, management must negotiate these decisions with the union. Similarly, employees may no longer communicate directly with management about work issues but instead must go through the union. Thus, the union functions as a middleman, which is relatively expensive to maintain for both parties. Employees pay union dues, and management incurs addi- tional costs for such things as contract negotiations and any increases in salaries and benefits negotiated by the union (Freeman and Medoff 1984).
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C o p y r i g h t 2 0 0 8 . H e a l t h A d m i n i s t r a t i o n P r e s s .
A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .
EBSCO Publishing : eBook Academic Collection (EBSCOhost) - printed on 3/24/2022 12:56 PM via WESTERN KENTUCKY UNIVERSITY AN: 237620 ; Fottler, Myron D., Fried, Bruce.; Human Resources in Healthcare : Managing for Success Account: s8993066.main.ehost
In healthcare, because labor costs generally account for 70 percent to 80 percent of expenditures, controlling labor costs is critically important. Thus, even if a union negotiates a minor wage or benefit increase, it will re- sult in a significant increase in total costs. Subsequently, management has a strong incentive to keep unions out of the organization (Scott and Seers 1996). However, given the trends of unionization in healthcare, managers are increasingly forced to work with unions. This chapter examines the phenom- enon of healthcare unionization and provides direction for managing with or- ganized labor. In addition, it discusses the possible behaviors and strategies that comprise the labor–management relationship; explains the generic labor relations process of organizing, negotiating, and administering contracts; ex- plores developments in organizing a relatively unorganized healthcare work- force; considers the impact of labor laws, amendments, and rulings on human resources (HR) strategies and goals; and considers the potential impact of the Internet on the labor–management relationship.
Managing with organized labor involves the application and mainte- nance of a positive labor relations program within the organization. A produc- tive and positive labor–management relationship can only be accomplished through integration with other HR functions. For example, employees expect management to provide environments that are clean and safe from workplace hazards and health-related concerns, such as AIDS and hepatitis B. If manage- ment allows the environment to deteriorate, union organizers will focus on these issues (Becker and Rowe 1989; Fennell 1987). In addition, the labor re- lations process occurs across all levels of the organization and involves all lev- els of management. Upper-level management will develop objectives and strategies regarding wage rates and staffing ratios while mid-level managers and first-line supervisors will implement these objectives.
Developing strategies and goals to implement a positive labor relations program in healthcare requires an understanding of the generic labor relations process of organizing, negotiating, and administering contracts with a union as well as specific knowledge of emerging healthcare labor trends. A produc- tive and positive labor–management relationship involves compromise by both parties because of the adversarial nature of the relationship. Just because a union has won the right to represent employees does not mean that man- agement has to accept all of its terms. All parties—management, unions, and employees—have a vested interest in the success and survival of the organiza- tion; yet they also have opposing or conflicting interests. For example, unions will look toward improving the benefits package for employees, while manage- ment, faced with budget cutbacks and declining reimbursements, will have concerns about containing costs. Thus, the challenge for management is work- ing with the union to reconcile differences in a fair and consistent manner.
As Figure 14.1 suggests, the labor–management relationship reflects a continuum of possible behaviors and strategies, ranging from the most
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positive or collaborative (in which management and the union share com- mon goals oriented toward the organization’s success) to the most negative or oppositional and self-serving. Even if the relationship is neutral and both parties cooperate to maintain the status quo, a variety of factors can cause the relationship to shift in either direction. For instance, restructuring, such as a merger, may create uncertainty for both the union and management and, as a result, may reposition their relationship along the continuum. However, the direction in which the relationship moves will depend largely on the knowledge and understanding of the labor relations process on both sides of the issue.
Overview of Unionization
Union membership has been declining steadily for decades. In the 1950s to 1970s, union membership represented 25 percent to 30 percent of the U.S. workforce. During the 1980s and 1990s, organized labor’s influence and bar- gaining power declined and weakened as the nature of U.S. industries shifted from factories and traditional union strongholds to service and technologies (Fottler et al. 1999). This trend appears to have continued, as evidenced by the fact that organized labor has been unable to make any net gains in mem- bership despite downward pressure on wages, increasing healthcare insurance
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FIGURE 14.1 Ranges of the Labor– Management Relationship in Healthcare
Positive Neutral Negative
• Management and • Management and • Management and union have joint union have a union have a collaboration on the fairly neutral mostly adversarial rules of the workplace relationship and unstable
relationship
• Management and • Management–union • Contract administration union have a positive relationship is is predominantly relationship, with both neither oppositional oppositional and parties focusing on the nor supportive self-serving success and survival of the organization
• Management and • Management and • Management and union proactively union focus on union tend to be respond to external maintaining reactive to external threats status quo threats
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costs, and outsourcing of service and manufacturing jobs overseas (Christian Science Monitor 2004).
Union membership rate has steadily decreased from 20.1 percent in 1983, the first year for which comparable union data are available, to 12 per- cent in 2006. In 2006, the total number of employees belonging to a union was approximately 15.4 million. Unions appear to be more successful in or- ganizing workers in the public sector than in the private sector and in health- care rather than in other industries. The union rate for government or public- sector workers has held steady at approximately 36.2 percent since 1983, while the rate for private-industry workers has fallen to 7.4 percent or about half over the same time period. Within the public sector, however, local gov- ernment workers had the highest union membership rate—41.9 percent. This group reflects several heavily unionized occupations such as teachers, fire- fighters, and police officers (Bureau of Labor Statistics 2000a, 2000b, 2004, 2006a, 2006b; Scott and Lowery 1994).
The healthcare workforce comprises an estimated 13.1 million workers and represents one of the largest pools of unorganized workers in the United States and a prime target for union organizers. Of the 4.3 million healthcare workers currently employed in hospitals, only 471,000 belong to a union. In addition, just 246,000 of the 5.4 million workers employed in other health- care sectors, such as nursing homes and clinics, are unionized (Bureau of La- bor Statistics 2000b, 2004, 2006a). Furthermore, unions in other healthcare sectors have consistently won a greater percentage of their elections than in the hospital segment or even in other industries (Scott and Seers 1996). Fif- teen of the 30 fastest growing occupations are health related, and registered nurses and nursing aides, orderlies, and attendants are projected to experience greater growth during this decade than other health occupations (Hecker 2004). Even though labor surveys indicate that the demand for unions exists, healthcare unions have not yet realized significant membership increases (Christian Science Monitor 2004; Kearney 2003). Nevertheless, some labor experts believe that healthcare unions represent one of the few areas in which organized labor has been showing some energy. Healthcare unions are re- ported to have invested heavily in membership recruitment and helping mem- bers gain influence (Evans 2006).
The Labor Relations Process
In an attempt to protect workers’ rights to unionize, the U.S. Congress passed the National Labor Relations Act (NLRA) in 1935, which serves as the legal framework for the labor relations process. Although the NLRA has been amended over the years, it remains the only legislation that governs federal la- bor relations. The law contains significant provisions intended to protect
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workers’ rights to form and join unions and to engage in collective bargain- ing. The law also defines unfair labor practices, which restrict both unions and employers from interfering with the labor relations process. The NLRA dele- gates to the National Labor Relations Board (NLRB) the responsibility for overseeing implementation of the NLRA and for investigating and remedying unfair labor practices. NLRB rulemaking occurs on a case-by-case basis.
Key participants in the labor relations process include (1) management officials, who serve as surrogates for the owners or employers of the organi- zation; (2) union officials, who are usually elected by members; (3) the gov- ernment, which participates through executive, legislative, and judicial branches occurring at federal, state, and local levels; and (4) third-party neu- trals such as arbitrators. The process also involves three phases that are equally essential: the recognition phase, the negotiation phase, and the administration phase.
Recognition Phase
During this phase, unions attempt to organize employees and gain represen- tation through either voluntary recognition of the union or a representation election, which certifies that the union has the authority to act on behalf of employees in negotiating a collective bargaining agreement. In rare cases, the NLRB may direct an employer to recognize and bargain with the union if ev- idence exists that a fair and impartial election would be impossible. During the past two decades, management strategies and tactics have become more ag- gressive during the recognition phase as management has endeavored to keep unions from becoming the employees’ representative. For example, manage- ment may institute unfair labor practices such as filing for bankruptcy, illegally firing union supporters, and relocation. Although unions may file grievances with the NLRB over these practices and the use of any illegal or union-busting tactics, legal resolution usually occurs years after the fact and long after union elections have been held. Thus, both unions and management understand that the battle lines are drawn in the recognition phase, and both sides will be fervently engaged in shoring up support.
The desire to unionize is believed to result from three issues: wages, benefits, and employee perceptions about the workplace. Because ascertain- ing the desires of employees is difficult, management must rely on signals or indicators in the workplace. Table 14.1 summarizes some of the behaviors that may indicate organizing activities or the potential for organizing employees. For example, high turnover of approximately 40 percent characterizes health- care institutions such as hospitals (Swoboda 1999). However, when employ- ees are leaving their jobs for a local competitor, management must investigate the underlying reasons for turnover. Even simple issues, such as an increase in requests for information on policies and procedures, can indicate problems and should not be discounted.
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Increase/ Item Decrease Comment
Turnover— Increase Turnover in healthcare organizations especially to typically is much higher than in competitors organizations in other industries because
of enhanced mobility from licensing and standardization; however, if employees are moving to competing organizations in the local area, such movement may indicate dissatisfaction rather than career opportunities
Employee- Increase Staff members are fighting among generated themselves; theft or damage to incidents organization’s property;
insubordination related to routine requests by supervisors
Grievances Increase More grievances are being filed with the HR office compared with informal settlements of supervisors and employees
Communication Decrease Staff members are reluctant to provide feedback and generally become quiet when management enters the room; suggestion boxes are empty and employees are less willing to avail themselves of the “open door’’ system or other mechanisms to air dissatisfaction/problems
HR office Increase Employees are interested in policies, informational procedures, and other matters related to requests the terms and conditions of employment,
and they want this information in writing; verbal responses no longer satisfy them
Off-site meetings Increase Employees appear to be congregating more at off-site premises
Grapevine activity Increase Rumors increase in number and intensity
Absenteeism and/ Increase Employees are engaging in union- or tardiness organizing activities prior to and during
work hours
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TABLE 14.1 Warning
Indicators for Healthcare
Organizations
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During the recognition phase, the union solicits signed authorization cards that designate the union to act as the employees’ collective bargaining representative. When at least 30 percent of employees in the bargaining unit have signed their cards, the union requests the employer to voluntarily recog- nize the union. Voluntary recognition is rarely granted by employers, however, and occurs less than 2 percent of the time in healthcare organizations. When employers refuse voluntary recognition of the union, the union is then eligible to petition the NLRB for a representation election. In response to the petition, the NLRB verifies the authenticity of the signatures collected by the union, de- termines the appropriate bargaining unit, and sets a date for a secret-ballot election. Healthcare workers represent a significant number of all workers par- ticipating in NLRB elections. In 2005, about 16 percent of the 2,674 NLRB elections held involved healthcare workers, and these workers were more likely to vote for a union compared with all other industries (NLRB 2005).
In recent years, unions have supported legislative efforts that would amend existing labor laws to eliminate secret-ballot elections. Such efforts are perceived to be part of organized labor’s strategy to target the union election process itself. Under existing labor law, the period leading up to the election can take several months to a year, during which employers are permitted to contest eligibility of workers to vote in a unit. Subsequent hearings and appeals can further extend the process. Even though it is illegal for employers to intim- idate workers during this period, unions allege such tactics. Unions also claim that by the time the election is actually held, workers are too afraid to vote for the union as their representative (Kaira 2005). Although legislative attempts to eliminate secret-ballot elections have been unsuccessful, they reflect the con- tinuing determination of unions to revise the organizing process in their favor.
The NLRB determines which employees are eligible to be in a bargaining unit and thereby eligible to vote in the election. Currently, the NLRB permits a to- tal of eight bargaining units in healthcare settings. The implications of this number and some historical perspective are provided later in this chapter; that section summarizes legislative and judicial rulings. Although the NLRB has modified its criteria over the years, it has not changed its outlook on manage- rial or supervisory employees, who are ineligible for membership in a bargain- ing unit. Under a provision of the NLRA (29USCS 152 [11]), an employee is a “supervisor” if the employee has the authority, in the interest of the employer, to engage in specific activities, including responsible direction of other employ- ees, where exercise of such authority requires the use of independent judg- ment. In a landmark 2006 ruling, the NLRB clarified and set forth guidelines for determining whether an individual is a supervisor under the NLRA. The NLRB ruled that “charge” nurses were supervisors, thereby making them and certain other nurses like them ineligible for bargaining unit representation.
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Bargaining Unit
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This ruling represents an opportunity to reclassify many nurses as management and thereby potentially decreases the union’s ability to recruit new members.
Generally, the union election is scheduled to occur on workplace prem- ises during work hours. The union is permitted to conduct a pre-election cam- paign in accordance with solicitation rules that are proscribed for both unions and management. For example, patient care areas such as treatment rooms, waiting areas used by patients, and elevators and stairs used in transporting pa- tients are off limits; but kitchens, supply rooms, business areas, and employee lounges are permissible locations. During the campaign, management may not make threats or announce reprisals regarding the outcome of the election, such as telling nurses that layoffs will result if the union is elected or pay raises will be given if the union loses. Management also may not directly ask employ- ees about their attitudes or voting intentions or those of other employees. Management is allowed, however, to conduct captive-audience speeches, which are meetings during work time to inform employees about the changes that certifying a union will mean for the organization and to persuade employ- ees to give management another chance.
To win the election and be certified by the NLRB as representing the bargaining unit, the union must achieve a simple majority or 50 percent plus 1 of those voting. Consequently, if voter turnout is low, the decision to be unionized will be decided by less than a majority of employees eligible to vote. When the union wins the election, it assumes the duties of the exclusive bar- gaining agent for all employees in the unit even if those employees choose not to join the union and pay membership dues. Similarly, any negotiated agree- ments will cover all employees in the bargaining unit. If the union loses, how- ever, it can continue to maintain contact with employees and provide certain representational services such as informing them of their rights. The union may lose the right to represent employees in the bargaining unit through a de- certification election.
Negotiation Phase
After winning the election, the union will begin to negotiate a contract on be- half of the employees in the bargaining unit. Federal labor laws encourage col- lective bargaining on the theory that employees and their employers are best able to reach agreement on issues such as wages, hours, and conditions of em- ployment through negotiating their differences. The process of negotiating this contract is referred to as collective bargaining. The NLRA (Section 8 [d], 1935) defines collective bargaining as follows:
. . . the performance of the mutual obligation of the employer and the represen- tative of the employees to meet at reasonable times and confer in good faith with re- spect to wages, hours and terms and conditions of employment or the negotiation
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of an agreement, or any question arising there under, and the execution of a writ- ten contract incorporating any agreement reached requested by either party to agree to a proposal or require the making of a concession.
The NLRA requires an employer to recognize and bargain in good faith with a certified union, but it does not force the employer to agree with the union or make any concessions. The key to satisfying the duty to bargain in good faith is approaching the bargaining table with an open mind and ne- gotiating with the intention of reaching final agreement (LLR 3115: 7888).
Issues for bargaining have evolved over a period of years as the result of NLRB and court decisions. Those issues are categorized as illegal, manda- tory, or voluntary (permissive). Illegal subjects, such as age-discrimination employment clauses, may not be considered for bargaining. Mandatory bar- gaining issues are related to wages, hours, and other conditions of employ- ment; Figure 14.2 provides a partial list of these issues. Mandatory subjects must be bargained if they are introduced for negotiation. Voluntary, or per- missive bargaining, issues carry no similar restriction. Examples of voluntary issues include strike insurance and benefits for retired employees.
Prior to bargaining, management will formulate ranges for each is- sue, which is similar to an opening offer, followed by a series of benchmarks that represent expected levels of settlement. Of course, management must calculate a resistance point beyond which it will cease negotiations. Fisher and Ury (1981) have developed a principled method of negotiation based on the merits or principles of the issues. The following four basic points are involved:
1. People. Separate the people from the problem. 2. Interests. Focus on interests, not the positions that people hold. 3. Options. Generate a variety of alternative possibilities. 4. Criteria. Insist that solutions be evaluated using objective standards.
According to this method, management will formulate a best alternative to a negotiated agreement for each issue. In this manner, negotiators evaluate whether the type of agreement that can be reached is better than no agree- ment at all. By considering mutual options for gain, the negotiator offers a more flexible approach toward bargaining and increases the likelihood of achieving creative solutions.
Collective bargaining is both a laborious and a time-consuming en- deavor. Bargaining requires not only listening to others but attempting to un- derstand the motivational force behind the dialogue. Successful negotiators make every effort to understand fully what truly underlies bargaining posi- tions and why they are so fiercely held. Also, negotiators are receptive to any signals that are being communicated, including nonverbal communication
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• Wages • Merit wage increase • Work schedule • Arbitration • Pension plan • Retirement age • Duration of agreement • Price of company • Group insurance • Reinstatement of meals (health, life, and
economic strikers • Seniority accident) • Work rules • Plant closing • Layoffs • Lunch periods • Employee physical • Job-posting procedures • Bonus payments examination • Union security • Promotions • Truck rentals • Musician price list • Transfers • Change in insurance • Change in operations • Plant reopening carrier/benefits resulting in • Bargaining over • Profit-sharing plan reclassifying workers
“bar list” • Agency shop from incentive to • Arrangement for • Subcontracting straight time, cut
negotiation • Most-favored- workforce, or • Plant closedown and nation clause installation of
relocation • Piece rates cost-saving machine • Overtime pay • Change of employee • Motor carrier union • Company houses status to agreement • Union-imposed independent • Sick leave
production ceiling contractor • Discriminatory racial • No-strike clause • Discounts on policies • Workloads company’s products • Work assignments • Cancellation of • Clause providing and transfers
security upon for supervisors’ • Stock-purchase plan relocation of plant keeping seniority • Management rights
• Employer’s insistence in unit clause on clause, giving • Nondiscriminatory • Shift differentials arbitrator right to hiring hall • Procedures for income enforce award • Prohibition against tax withholding
• Severance pay supervisors doing • Plant rules • Safety unit work • Superseniority for • Checkoff • Partial plant closing union stewards • Hours • Discharge • Hunting on employer • Holidays (paid) • Vacations (paid) forest preserve where • Grievance procedure • Layoff plan previously granted • Change of payment • Union security and
(hourly to salary) checkoff
NOTE: This is a list of major items for bargaining; the list does not include subcategories.
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FIGURE 14.2 Mandatory Bargaining
Issues
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such as body language (Fisher and Ury 1981). Bargaining, as depicted in Fig- ure 14.3, can be conceptualized as a continuum of bargaining behaviors and strategies. At one end of the continuum is concessionary bargaining, in which the employer asks the union to eliminate, limit, or reduce wages and other commitments in response to financial constraints. This type of bargaining is likely to occur when the organization is in financial jeopardy and is struggling to survive. At the opposite end is integrative bargaining, which seeks win-win situations and solutions that creatively respond to both parties’ needs. This type of bargaining requires the trust and cooperation of both parties. In the center is distributive bargaining, which is a win-lose type in which each party gives up something to gain something else. This type of bargaining is likely when negotiations are contentious and full of conflict.
Even when both parties negotiate in good faith and fulfill the covenants of the NLRA, an agreement still may not be reached at times. When this happens, parties are said to have reached an impasse. To resolve an impasse, a variety of techniques may be implemented. These techniques in- volve third parties and include mediation, in which a mediator evaluates the dispute and issues nonbinding recommendations. If either party rejects the mediator’s recommendations, arbitration is an alternative. Arbitrators, simi- lar to mediators, are neutral third parties, but their decisions are legally bind- ing. For example, arbitrators may recommend that either party’s position be accepted as a final offer, or they can attempt to split the differences between the two parties’ positions.
If these techniques fail to resolve the impasse, employers or the union can initiate work stoppages that may take the form of lockouts or strikes. A lockout occurs when the employer shuts down operations either during or prior to a dispute. A strike, on the other hand, is employee initiated. Lockouts or strikes can occur during negotiations and also during the life of the con- tract. Special provisions for these work stoppages in healthcare settings are dis- cussed in the section below on the history of judicial and legislative rulings.
In addition, no-strike and no-lockout clauses can be negotiated in the agreement. No-strike clauses essentially prohibit strikes, either uncondition- ally or with conditions. An unconditional no-strike clause means that the union and its members will not engage in either a strike or work slow-down
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Integrative Distributive Concessionary Bargaining Bargaining Bargaining (win–win) (win some–lose some) (winner takes all)
FIGURE 14.3 Collective Bargaining Continuum
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while the contract is in effect. A conditional no-strike clause bans strikes and slow-downs except in certain situations and under specific conditions, which are delineated in detail in the agreement. Comparable clauses for lockouts ex- ist for employers.
Administration Phase
When an agreement between the union and the employer is reached, it must be recorded in writing and executed in good faith, which means that the terms and conditions of the agreement must be applied and enforced. This agree- ment will include disciplinary, grievance, and arbitration procedures, many of which have been discussed in other chapters. The collective bargaining agree- ment imposes limitations on the disciplinary actions that management may take. The right to discharge, suspend, or discipline is clearly enunciated in contractual clauses and in the adoption of rules and procedures that may or may not be incorporated in the agreement.
Management may discipline up through discharge only for sufficient and appropriate reasons and must base all procedures on due process. The union’s role in the process is to defend employees and to determine the pro- priety of management action. The burden of proof rests with management to prove that whatever action was taken was proper and consistent with progres- sive discipline. If the grievance proceeds to arbitration, arbitrators will usually support management if they find evidence of progressive discipline and evi- dence that employees were fully aware of the standards against which their be- havior was to be measured. These standards include very basic rules and reg- ulations that outline offenses that will subject employees to disciplinary action and the extent of such action.
The heart of administering the collective bargaining agreement is the grievance procedure. This procedure is a useful and productive management tool that allows implementation and interpretation of the contract. A griev- ance must be well defined and restricted to violations of the terms and con- ditions of the agreement. However, other conditions may give rise to a grievance, including violations of the law or company rules, a change in working conditions or past company practices, or violations of health and safety standards.
The grievance process usually contains a series of steps. The first step always involves the presentation of the grievance by the employee (or repre- sentative) to the immediate, first-line supervisor. If the grievance is not re- solved at this step, broader action is taken. Because most grievances involve an action by the immediate supervisor, the second step necessarily must occur outside the department and at a higher level; thus, the second step will involve the employee (or representative) and a department head or other administra- tor. Prior to this meeting the grievance will be written out, dated, and signed by the employee and the union representative. The written grievance will
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document the events as the employee perceived them, cite the appropriate contract provisions that allegedly had been violated, and indicate the desired resolution or settlement prospects. If the grievance is unresolved at this point, a third step becomes necessary that involves an in-house review by top man- agement. A grievance that remains unresolved at the conclusion of the third step may go to arbitration if provided for in the contract and if the union is in agreement.
Most collective bargaining agreements restrict the arbitrator’s decision to application and interpretation of the agreement and make the decision fi- nal and binding on both parties. Most agreements also specify methods for se- lecting arbitrators. If the union agrees to arbitration, it must notify manage- ment, and an arbitrator is jointly selected. In evaluating the grievance, arbitrators focus on a variety of criteria, including the actual nature of the of- fense, the past record of the grieving employee, warnings, knowledge of rules, past practices, and discriminatory treatment. Thus, a large number of factors interact, making arbitration a complex process.
An arbitration hearing permits each side an opportunity to present its case. Similar to a court hearing, witnesses, cross-examinations, transcripts, and legal counsel may be used. As with a court hearing, the nature of arbitration is adversarial. Thus, cases may be lost because of poor preparation and pres- entation. Generally, the courts will enforce an arbitrator’s decision unless it is shown to be unreasonable, unsound, or capricious relative to the issues under consideration. Also, if an arbitrator has exceeded his or her authority or issued an order that violates existing state or federal law, the decision may be vacated. Consistent and fair adjudication of grievances is the hallmark of a sound la- bor–management relationship.
In healthcare settings, the strike is the most severe form of a labor–management dispute. A critical part of planning for negotiations is an honest assessment of strike potential. This involves identifying strike issues that are likely to be critical for all parties. Although estimating the impact of possible strikes, including economic pressures from lost wages and revenues, is essential, the key to a successful strike from the perspective of the union is to impose enough pressure on management to expedite movement toward a compromise. Pressure may be psychological as well as economic. In health- care settings, the real losers in a strike are the patients and their families. Dur- ing a strike, patients may be denied services or forced to postpone treatment, be relocated to another institution, or even be discharged prematurely.
Management must be aware of critical factors that affect its ability and willingness to withstand a strike. When attempting to estimate the im- pact of these factors, managers will evaluate several key indicators, includ- ing revenue losses, timing of the strike, and availability of replacements for striking workers. However, management must also contemplate factors that affect the union, such as the question of whether striking employees will be
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entitled to strike benefits, especially health benefits. If so, for how long? Both parties must also consider the impact of outside assistance to avoid or settle a strike.
A Review of Legislative and Judicial Rulings
Table 14.2 summarizes important legislative and judicial rulings and their im- pact on healthcare settings. As the table indicates, in recent years significant rulings have centered primarily on organizing issues, mostly involving physi- cians and nurses and their eligibility for inclusion in bargaining units. In 2004, the focus appeared to shift to financial issues such as changes to the Fair La- bor Standards Act, which exempted most nurses from overtime pay. Unions were also affected by changes to the Labor Management and Disclosure Act. Stricter reporting requirements were required that aimed at increased trans- parency and accountability for how unions spend dues money (Harvard Law Review 2004). In 2006, much attention was directed toward organizing is- sues, specifically the determination of who is a supervisor; a supervisor, after all, is excluded from the bargaining unit.
As management structures have grown increasingly flat and less hier- archical, many jobs have assumed expanded duties that include a managerial component. Accordingly, determining who is a supervisor has become chal- lenging, especially with regard to health professionals who operate with some autonomy (Von Bergen 2006). Of particular significance for health- care are two decisions that concern supervisory status. First, there is the U.S. Supreme Court decision in the case of the NLRB v. Kentucky River Com- munity Care, Inc. The Supreme Court criticized the NLRB’s lack of clarity in its interpretation of the term independent judgment to determine super- visory status. Subsequently, the NLRB addressed its definition of supervi- sory status. In a landmark case, Oakwood Healthcare, Inc., 348 NRB No. 37 (September 29, 2006), the NLRB ruled that permanent charge nurses employed by acute care hospital Oakwood Heritage Hospital in Taylor, Michigan, exercised supervisory authority in assigning employees within the meaning of Section 2 (11) of the NLRA. In this ruling, the NLRB reexam- ined and clarified its interpretations of the terms “independent judgment,” “assign,” and “responsibility to direct.” At issue was whether nurses at Oak- wood assigned and directed other nurses using their own judgment rather than following written instructions or orders from a supervisor. The NLRB held that charge nurses who usually assign work and monitor care during a shift were supervisors and hence excluded from the bargaining unit. Nurses who handled such responsibilities on a part-time basis were not considered to be supervisors and therefore would remain eligible for union membership (Evans 2006; PR Newswire 2006).
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Year Legislation/ Judicial Ruling Impact on Healthcare Organizations
1947 Taft-Hartley amendments to Exempted not-for-profit hospitals from NLRA NLRA coverage, including collective
bargaining
1962 Executive Order #10988 Permitted federally supported hospitals to bargain collectively
1974 Healthcare amendments to Extended NLRA coverage to private, NLRA not-for-profit hospitals and healthcare
institutions; special provisions for strikes, pickets, and impasses
1976 NLRB ruling: Cedars-Sinai Ruled that medical residents, interns, Medical Center, Los Angeles and fellows (house staff ) are students
and excluded from collective bargaining
1989/ NLRB ruling/Supreme Court Expanded the number of bargaining 1991 affirmation on multiple units in acute care hospitals from
bargaining units: PL 93-360 three to eight
1999 NLRB Ruling: Boston Reversed Cedars-Sinai Medical Center Medical Center decision and ruled that house staff are
employees, not students, and can there- fore be included in collective bargaining
2001 Supreme Court decision Court ruled that registered nurses who regarding nurse supervisors: use independent judgment in directing NLRB v. Kentucky River employees are supervisors. Expected Community Care, Inc. impact: limiting unions’ ability to
organize nurses
2003 U.S. Department of Labor adopted a rule that increases union financial reporting requirements (19 C.F.R. pts 403 and 408) to provide for transparency of union financial structures and accountability of how unions spend their dues
2004 U.S. Department of Labor issued new rules that make most nurses ineligible for overtime pay under Part 541 of the Fair Labor Standards Act
2006 NLRB ruling: Oakwood NLRB addressed supervisory status in Heritage Hospital, Taylor, response to the Supreme Court’s Michigan decision in the Kentucky River case;
issued guidelines for determining whether an individual is a supervisor under the NLRA; and reclassified certain nurses (i.e., charge nurses) as management and thus are ineligible to join unions
Expected impact: Reduce potential for union recruitment, and it could permit employers to challenge existing con- tracts and remove nurses from bargain- ing units
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TABLE 14.2 Summary of Important Legislative and Judicial Rulings
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The impact of this ruling could be consequential for union member- ship because the ruling substantially limits the ability of unions to recruit nurses. Also, it can make organizing a union in a hospital or other healthcare facility more difficult because of fewer eligible workers. Healthcare employers can challenge union elections and attempt to decertify nurses who are no longer protected by the collective bargaining agreements (Harrell 2006). However, employers may also face union challenges and may be called upon to demonstrate that supervisory assignments were consistent with the NLRB guidelines. Because the answer to “who is a charge nurse?” varies from hospi- tal to hospital, gray areas are left to be settled. These gray areas are what unions will ultimately challenge (Evans 2006; Alexander 2006). In addition, unions will likely fight for contract provisions to keep supervisory nurses in the union.
The Taft-Hartley Act (Taft-Hartley) amended the NLRA in 1947. The primary intent of these amendments was to strike a balance in the NLRA, be- cause most of its protections and rights applied to workers and employers needed a means for redress. Taft-Hartley also gave states federal permission to enact right-to-work laws, which essentially prohibit employees from being forced to join unions as a condition of employment. Currently, 21 states, mostly in the South and West, have enacted such laws. Unions oppose right- to-work laws in part because under the NLRA, unions are responsible for rep- resenting all employees in the bargaining unit, even those members who choose not to join the union and consequently pay no union dues. (Nonunion members of the bargaining unit are often referred to as “free riders” because they acquire all of the benefits of union membership without any cost. Mean- while, proponents of right-to-work laws maintain that no one should be forced to join a private organization, especially if that organization is using dues money to support causes that contravene an individual’s moral or reli- gious beliefs.)
Although the NLRA, as it was initially enacted in 1935, did not exempt healthcare employees explicitly, court interpretations tended to exclude healthcare workers from its regulations, until later amendments asserted juris- diction over a variety of healthcare institutions. Taft-Hartley had a significant impact on healthcare workers because Section 2 (2) specifically excluded from the definition of “employer” those private, not-for-profit hospitals and health- care institutions. However, the NLRB asserted jurisdiction over proprietary hospitals and nursing homes, and the 1974 Health Care Amendments, Pub- lic Law 93-360, brought the private, not-for-profit healthcare industry within the jurisdiction of federal labor law.
Approximately 2 million additional healthcare workers became eligible for representation with the 1974 Health Care Amendments (Stickler 1990). These amendments afforded stringent protections regarding work stoppages
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to safeguard patient care. Table 14.3 summarizes the provisions for strikes and pickets as well as impasse requirements. In drafting the 1974 amendments, the congressional committee specifically included a ten-day strike and picket no- tice provision, a requirement that had not been applied to other industries. The committee did so to ensure that healthcare institutions would have suffi- cient advance notice of a strike. Furthermore, the committee report of the amendments held that a union is in violation if it has a strike at a facility more
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1974 Healthcare Amendments to General NLRA the Taft-Hartley Act Provisions
30-day “reasonable” time to picket following which Similar requirement a representation petition must be filed by the union with NLRB
90-day notice for modifying an existing collective 60-day requirement bargaining agreement
60-day notice to FMCS* of impending expiration of 30-day requirement existing collective bargaining agreement
Following FMCS notification, contract must remain 30-day requirement in effect for 60 days without any strikes or lockouts
30-day notice of a dispute must be given to FMCS No similar and appropriate state agency during initial requirement negotiations
The director of FMCS is authorized to appoint a No similar authority board of inquiry in the event of a threatened or actual work stoppage
10-day written notice to employer and FMCS of No similar strikes or pickets required of healthcare unions requirement [Note: this notice cannot occur before either (1) the end of the 90-day notice to modify the existing contract or (2) the 30-day notice in the case of an impasse during negotiations of the new contract.]
A new Section 19 provides for an alternate, a No similar contribution to designated 501(c)(3) charities, requirement for the payment of union dues for persons with religious convictions against making such payments
* Federal Mediation and Conciliation Service
TABLE 14.3 Comparison of Provisions for Strike or Picket Notification and Impasse Requirements
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than 72 hours after the designated notice time, unless the parties agreed to a new time or the union issued a new ten-day notice. In addition, if the union does not begin the strike or other job action at the time designated in the ini- tial ten-day notice, it must provide the healthcare facility with at least 12 hours’ notice before the actual beginning of the action. Thus, the 12-hour “warn- ing” must fall completely within the 72-hour notice period. Repeatedly serv- ing ten-day notices on the employer also constitutes evidence of a refusal to bargain in good faith and is a violation of the NLRA.
The reprisals for violating the ten-day notice are substantial. For ex- ample, workers engaged in work stoppage in violation of the strike notice lose their status as employees and are subsequently unprotected by the NLRA provisions. Exceptions to the requirements for unions to provide notices are provided as well. If the employer has committed a flagrant or serious, unfair labor practice, then notices are not required. In addition, the employer may not use the ten-day notice period to essentially undermine the bargaining re- lationship that otherwise exists. For example, the facility can receive supplies, but it is not free to stockpile supplies for an unduly extended period. Simi- larly, the facility cannot bring in large numbers of personnel from other facil- ities for the purpose of replacing striking workers (Metzger, Ferentino, and Kruger 1984).
In 1989, an NLRB ruling established eight units for the purpose of collective bargaining in acute care hospitals: (1) physicians, (2) nurses, (3) all other professionals, (4) technical employees, (5) business office clerical em- ployees, (6) skilled maintenance employees, (7) guards, and (8) all other nonprofessionals. Figure 14.4 provides more detail on the various occupa- tions that fall within the eight designated categories. As with all bargaining unit determinations, supervisors are excluded from unit membership. The American Hospital Association (1991) strongly opposed the ruling and ap- pealed to the U.S. Supreme Court, protesting that eight units would lead to a proliferation of bargaining units in the hospital, further fragmenting health- care collective bargaining; increasing bargaining costs; making implementa- tion of hospitalwide policies more difficult; and ultimately inflating the cost of healthcare and rendering the bargaining process more complicated, lengthy, and subject to legal appeals and challenges. The Supreme Court dis- agreed, affirming the NLRB’s ruling in 1991. Although little empirical evi- dence specifically evaluates the impact of the eight-unit ruling (Hirsch and Schumacher 1998), election activity and the union win rate within these eight units have increased. Table 14.4 presents election information for the period 1995 through 1999.
Finally, despite lobbying campaigns, unions have failed consistently in their attempts to eliminate secret-ballot NLRB elections. As discussed ear- lier, unions prefer to revise the organizing process in their favor by calling
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1. Physicians 2. Nurses:
• registered nurses • graduate nurses • non-nursing department nurses • nurse anesthetists • nurse instructors • nurse practitioners
3. All professionals, except for registered nurses and physicians: • audiologists • chemists • counselors • dietitians • educational programmers • educators • medical artists • nuclear physicists • pharmacists • social workers • technologists • therapists • utilization review coordinators
4. Technical employees: • infant-care technicians • laboratory technicians • licensed practical nurses • operating room technicians • orthopedic technicians • physical therapy assistants • psychiatric technicians • respiratory therapy technicians • surgical assistants • x-ray technicians
5. Business office clerical employees 6. Skilled maintenance employees 7. Guards 8. All other nonprofessional employees
for a card-check method instead of an election. An example of such an ef- fort is the Employee Free Choice legislation, including Senator Ted Kennedy’s Employee Free Choice Act of 2007 (Senate Bill 1041). This act sought to amend labor laws to eliminate elections for certification. Although the union has not yet achieved legislative success, it is likely to continue to push for change.
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FIGURE 14.4 Eight Categories of Workers Specified in NLRB Bargaining Rules
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Year Total Elections Union Wins
1995 291 156
1996 370 205
1997 407 258
1998 486 290
1999 517 333
SOURCE: Industrial Distribution of Representation Elections Held in Cases Closed, FY 1995–1999. Annual Reports of the NLRB.
Developments in Organizing Healthcare Workers
Unions
The union landscape shifted dramatically in 2005, when the SEIU (Service Employees International Union) ended its relationship with the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) because of a failure to pursue aggressive strategies to recruit new members. The SEIU subsequently aligned itself with the Change to Win federation, joining six other former AFL-CIO affiliates that similarly chose to sever ties. The SEIU action was consequential as it reduced the AFL-CIO membership of 13 million by about a third. In 2007, the SEIU, which reportedly repre- sents 1.9 million members, announced the formation of a separate national healthcare union—SEIU Healthcare—that focuses exclusively on healthcare workers. The SEIU has been visible in its support of efforts to expand nurse–patient ratios and efforts to organize physicians. In addition to its fo- cus on hospital, nursing, and long-term care workers, SEIU Healthcare will target employees in ambulatory surgery centers, laboratories, clinics, and other healthcare areas (Siderius 2005; SEIU 2007). To date, the local unions of SEIU Healthcare have been visibly active in recruitment and bargaining. Recently, SEIU Healthcare successfully negotiated one of the largest labor contracts with HCA, a private-sector hospital chain. The contract covers six facilities and 4,000 workers across HCA hospitals in Florida and includes a wage increase (Dorschner 2007).
The AFL-CIO has also increased its healthcare organizing efforts, cre- ating an alliance of eight of its unions to recruit nurses. This alliance of nursing unions includes United American Nurses (UAN)—the labor arm of the Amer- ican Nurses Association and one of the largest nurses’ unions, with a member- ship of approximately 104,000 members. In 2007, the California Nurses Association (CNA) also joined the AFL-CIO, bringing along an estimated
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TABLE 14.4 Summary of
Election Activity in
Health Services Elections,
1995–1999
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71,000 nurses and thus increasing the total number of AFL-CIO’s nurse membership to 325,000. The CNA has been aggressive with recruitment ef- forts and is looking to build membership nationwide. The CNA’s organizing arm, the National Nurses Organizing Committee, aims to expand member- ship nationally, even though its attempt to unionize nurses at Mt. Sinai Hos- pital in Chicago failed in 2006 (Modern Healthcare 2006; Evans 2007a, 2007b).
Physicians
Historically, physicians resisted union organizing for various professional and philosophical reasons. In fact, much of the American Medical Association (AMA) membership generally views unionism as antithetical to professional- ism and unions as economic devices that extract benefits for their members at the expense of patient trust and confidence. In addition, organizing physicians presented legal challenges because the majority of physicians are independent contractors and thus are technically ineligible for union membership. Only “employed” physicians, including those employed in academic settings, are authorized to bargain collectively. Physicians who practice as independent contractors are restricted from collective bargaining by the Sherman Antitrust Act of 1890, which prohibits all business combinations that restrain free trade. Therefore, these physicians cannot legally talk with one another about price of service. Subsequently, independent contractors who engage in collective bargaining with entities such as health plans and insurers risk exposure to fed- eral antitrust suits (AAMC 1999; Anthony and Erf 2000; Cohen 1999).
Nonetheless, the growth of “tight” managed care in the 1990s pro- vided a powerful incentive for the rise of the physician union movement in the United States. The vast majority of physician complaints and efforts to union- ize derived from corporate interference in medical decision making and coer- cive practices of managed care organizations (Anawis 2002; Luepke 1999). At its annual meeting in June 1999, the AMA House of Delegates approved a con- troversial resolution, creating a national “bargaining unit” for physicians. The bargaining unit—Physicians for Responsible Negotiations (PRN)—permitted employed physicians to bargain with health plans and insurers. The resolution was controversial because the AMA, which traditionally opposed physician unions, reversed its position. In so doing, the AMA recognized collective bar- gaining as an acceptable professional mechanism for interacting with govern- ment and other third-party payers. Federal and state legislation also was pro- posed in support of amending antitrust laws to permit independent physicians to unionize. However, this legislation did not gain widespread support and was subsequently abandoned.
The PRN struggled for survival and recruited few members. In 2002, the AMA reduced its financial support for the PRN, only guaranteeing the union’s survival through the year 2003. In March 2004, the AMA, with little
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press attention, severed its relationship with the PRN. In June 2004, the PRN partnered with SEIU and its two other affiliated doctors’ unions—The Doc- tors Council and the National Doctors Alliance. This affiliation represents the largest collection of unionized physicians in the United States, including ap- proximately 20,000 members made up of salaried and private-practice physi- cians as well as medical residents and interns (Michels 2004; Romano 2004). Although little evidence exists to explain why the PRN was not well supported by physicians, the loosening of managed care was likely a dominant factor. In- creases in consumer choice and open access effectively reduced many of the physician complaints and problems that previously substantiated interest in unionizing. For example, by the late 1990s, specialty physicians were regain- ing status as revenue and profit generators. Still, physicians also likely recog- nized the potential for obtaining judicial relief when they filed and won a class- action suit for reimbursement disputes against Aetna (Casalino, Pham, and Bazzoli 2004; Martinez 2003).
House Staff (Medical Residents, Interns, and Fellows)
and Medical Students
In 1999, the NLRB ruled that house staff at Boston Medical Center were em- ployees, not students. The impact of this ruling is that house staff in private hospitals are now legally entitled to bargain collectively. This determination was a reversal of a 1976 ruling for Cedars-Sinai Medical Center in Los Ange- les in which house staff were classified as students (Yacht 2000). In 2001, medical residents at 525-bed Brookdale University Hospital and Medical Center in New York became the first private-sector hospital physicians in the United States to ratify a collective bargaining agreement since that right was affirmed by the NLRB (Modern Healthcare 2001). Opponents of house staff unionization suggest that union activity will create adversarial relationships between house staff and instructors. For example, unions can negotiate resi- dent promotions and fight against disciplinary actions and dismissal of poorly performing house staff (Levenson 1999).
Nurses
Nurses are predominantly employed in hospitals, where they represent the largest service and thus a significant labor cost. Nurses play a key role in pa- tient care, providing care 24 hours a day, 7 days a week. Historically, nurses have struggled with conflict among their obligation to their patients, their profession, and union representation. Approximately 2.5 million registered nurses (RNs) work in the United States and, despite uneven salary levels across the profession and widespread, persistent discontent with working con- ditions, the majority of these nurses do not belong to a union. Approximately 18 percent of RNs are unionized (Bureau of Labor Statistics 2006b; Leung 1999). In addition, because of a 2006 NLRB landmark ruling concerning
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supervisory status, many nurses may no longer be eligible for union member- ship (see Table 14.2).
Unlike physicians, whose workplace problems and needs seem to be ad- dressed without the help of unions, nurses currently have a different experi- ence. As the Interview with a Nurse Activist section (at the end of the chapter) explains, nurse–management relationships are strained. National nurse short- ages and pressures on hospitals to trim labor costs have increased nursing work- loads and hours and thus the potential for nurses to commit errors during long shifts. In Massachusetts, work hours are a contentious nursing issue and have led to work stoppages and strike threats during contract negotiations (Kowal- czyk 2004; Rowland 2006). Research affirms that for nurses to vote in favor of a union, they must believe that joining a union will help them gain greater con- trol over patient care (Clark et al. 2000). Thus, patient care issues appear to be motivating many nurses to unionize (DeMoro 2002; Meier 2000).
Nurse activism remains ongoing and widespread. From informational pickets and protests to threats of strikes, nurses appear prepared to take action to ensure patient safety, adequate staffing, wages, and benefits. For example, in December 2006, nurses filed a class-action antitrust lawsuit against hospi- tals and health systems in the Detroit area. The suit alleged a collusion among these facilities to fix wages at below-market levels, and it is only one among similar class-action cases filed on behalf of nurses in other states, including Ari- zona, Illinois, New York, Tennessee, and Texas (Taylor 2006). In May 2007, judges allowed the nurse class-action case in Tennessee to continue despite at- tempts by the employing hospitals to have the case dismissed. The judge ruled that the nurses had facts that are sufficient to support claims of a conspiracy to depress nurses’ wages (Evans 2007c).
The UAN looks to increase support and influence and to bring aggres- siveness to organizing and other union activities. Although some state affiliates, such as the CNA, have chosen to align with the AFL-CIO, others such as the Massachusetts Nurses Association (MNA) have opted to go it alone and thus far have been successful. For example, the MNA, which represents 23,000 nurses, used the threat of a strike to negotiate a contract for nurses at Brigham and Women’s Hospital; the contract makes nurses at Brigham and Women’s Hospital among the highest paid in the state. The MNA also won key contract language that keeps supervisory nurses in the union (Rowland 2006). The move toward increased aggressiveness through union activism derives prima- rily from problems related to staffing and stress, especially managed care’s pres- sure to reduce hospital lengths of stay. Priority issues for nurses center on pa- tient loads, mandatory overtime, staffing cuts, “floating” to unfamiliar areas, and benefits such as wages and pensions (Meier 2000; Spetz and Given 2003; Rowland 2006).
By joining and becoming active in unions, nurses are exercising their voice and using tools of unionism such as election petitions, contract
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negotiations, and work stoppages such as sick-outs and strikes. Nurses are cap- turing the public’s attention and using their influence to obtain community support (see Interview with a Nurse Activist section). To date, however, ag- gression and activism have yielded mixed results. Their efforts to influence pa- tient safety and quality-of-care legislation have been successful at the state level but not at the federal level. For example, California enacted the first law that establishes nurse-to-patient staffing ratios. This law, in effect, requires hospitals to reduce nurse workloads and improve patient safety by guarantee- ing minimum nurse-to-patient ratios. It also serves as a framework for man- dates in other states and at the federal level (Benko 2004). Similarly, nursing unions have achieved success at the state level with mandatory overtime leg- islation. State laws that prohibit or limit mandatory overtime have been en- acted in five states—Maine, Minnesota, New Jersey, Oregon, and Washing- ton. However, corresponding federal legislation has not been enacted despite heavy union opposition to mandatory overtime. Nursing unions also failed to stop revisions to the Fair Labor Standards Act, which effectively exempts most nurses from overtime pay (see Table 14.2).
The Impact of the Internet
The role of the Internet in union organizing and solicitation campaigns and in collective bargaining and contract administration has received little atten- tion. However, the Internet is expected to be an influential tool, as it has been for many other causes. Union websites offer up-to-date information on union activities and developments and promote membership benefits. Because unions must observe specific rules about visiting work premises to solicit dur- ing union recognition campaigns, the Internet offers unprecedented oppor- tunities to communicate with employees without time and place restrictions.
With e-mails, websites, and blogs, unions are equipped with commu- nication channels that can reach prospective members without alerting their employers. Some websites, such as the CNA’s, offer sample contracts for nurses to use in bargaining with employers. Similarly, employers have the abil- ity to disseminate information via the Internet. Furthermore, various websites and blogs are dedicated to sharing negative information about unions, such as the number of unfair labor practices filed against unions for coercive or intim- idating behavior exhibited toward employees. Enhanced communication also means transparency, and the Internet offers both employers and unions un- precedented insight and information regarding each other’s efforts.
For example, when the SEIU began efforts to organize at teaching hos- pitals in Boston, it sent out a letter to some trustees of Beth Israel Deaconess Medical Center, a teaching hospital, alleging that the hospital had potentially misrepresented its charity care in financial statements (Strom 2008). In re- sponse, the chief executive officer (CEO) of Beth Israel Deaconess Medical Center used his widely read blog to accuse the union of unfair tactics, such as
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attacking the reputation of teaching hospitals, their senior management, and their trustees. The SEIU’s response to the CEO’s blog was posted on its web- site and was e-mailed (Cooney 2007). Judging from this example alone, the Internet seems to have enhanced the ability of all parties (employees, employ- ers, and unions) to communicate about the labor-management process. How the Internet will affect the labor–management relationship remains to be seen.
Management Guidelines
Following are key points to remember about labor relations.
1. Whether a healthcare organization is union or nonunion, it should have a policy on unionism, and this policy should be communicated to current and prospective employees. A positive labor–management relationship begins with the screening process. All prospective employees should be given information about the institution’s position toward unions as well as its goals and strategies of fair and consistent dealings with unions. Employee handbooks and orientation represent other opportunities to communicate management’s commitment to provide equitable treatment to all employees concerning wages, benefits, hours, and conditions of employment. Furthermore, management must also communicate that each employee is important and deserves respect and that adequate funds and management time have been designated to maintain effective employee relations (Rutkowski and Rutkowski 1984).
2. Management not only must have effective policies and procedures for selection of new employees but also must ensure proper fit of personnel with specific jobs. Job analyses, job descriptions, and job evaluations, as well as fair wage and salary programs, are essential in establishing a fundamental basis for fair representation. Management must not make promises that cannot be fulfilled; at the same time, it should strive to do whatever is possible to improve employee relations. Monitoring employee attitudes through surveys is essential; otherwise, management is dependent on the union for communicating worker problems or change in attitudes.
3. Management must fulfill its roles and responsibilities to employees by providing necessary training, especially for first-line supervisors who are instrumental in determining how policies are implemented and in serving as liaisons between management and employees. If supervisors are not properly trained, grievances are less likely to be settled quickly and are more likely to escalate into substantive formal disputes. Training is especially critical in healthcare settings because of constant and rapid changes in technology and workplace safety issues. Management’s commitment to training must be consistent with fair and honest
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treatment of employees. Similarly, if management fails to establish objective performance policies and does not ensure that they are done routinely, the labor–management relationship is affected. Employees may perceive inequities and unfairness and experience problems of declining morale and productivity because rewards are not matched with performance.
4. Inconsistent and unfair application of disciplinary policies and procedures can create unnecessary grievance problems. At a minimum, the principle of just cause should guide the disciplinary process. When employees file grievances, they expect prompt attention to their requests. Delay in responding or ignoring complaints is a clear signal to employees that management does not care about their problems and thus cannot be trusted. Furthermore, management’s credibility with employees will then deteriorate, creating an imbalance in the labor–management relationship that leads to employee perception that the union’s position is the most honest.
5. Each phase of the labor-relations process is interrelated and can affect the outcome of other phases. For example, if the union is able to obtain representation through voluntary recognition, the negotiations for a collective bargaining agreement will likely be less adversarial than a representation election. Similarly, if the negotiations for a collective bargaining agreement are contentious, difficulties may occur in administering the contract. Thus, having a full understanding of each phase and its potential to enhance or impede the overall process of labor relations is essential.
Summary
As this chapter describes, managing with organized labor is challenging. Even though unionism has been declining nationally for decades, the relatively un- organized healthcare workforce has continued to grow and as such has be- come a serious target for unions. Since 2001, 1.7 million new jobs have been added to the healthcare industry, far surpassing the rest of the labor market. Unlike many other industries, healthcare requires a wide range of personnel, from home health aides to nurses to technicians to physicians (Mandel and Weber 2006). Because union membership and election activity have increased in healthcare settings, managers must devote high-level attention to the appli- cation and maintenance of a positive labor-relations program that integrates human resources functions. Unfortunately for healthcare, the rise of claims of unfair labor practices and the increase in threats of strikes, walkouts, and other work stoppages suggest that the labor–management relationship is strained. Thus, it is incumbent on management to create strategies and goals to implement a positive labor-relations program that addresses employee-related
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challenges. The formation of the SEIU healthcare union, a landmark ruling by the NLRB regarding nursing supervisors, and increased use of the Inter- net to expand communication channels signal major changes for human re- sources practices and the labor-relations process.
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Discussion Questions
1. Why should management have a policy on unionism? What purpose does such a policy serve?
2. Describe the three phases of the labor- relations process. Why are all phases equally important?
3. What are some of the behaviors that may indicate to managers that organizing activities are occurring?
4. Explain the potential far-reaching impact of the NLRB ruling on nursing supervisors. Will this ruling have a chilling effect on nursing unions?
Experiential Exercises
The CEO of a mid-size urban hospital was late
one Friday evening, so he took a short cut that caused him to walk by the employee lounge. He walked inside and shook his head. With all the problems of budget cuts and trying to make ends meet, he realized that little money had been available for up- keep of nonpatient areas such as the em- ployee lounge. The carpet was dirty and worn, the coffee mugs were chipped, the wallpaper was torn, and the refrigerator groaned as it cycled on and off. The CEO de- cided enough was enough. The employees had worked hard and should, at minimum, have an employee lounge that was inviting and pleasant.
He marched back to his office and called the COO to instruct her to create a weekend miracle by calling in the work crews to update and refurbish the employee
lounge. He ordered new carpets, new wallpa- per, and new appliances, and he wanted it all done by Monday. The CEO told the COO, “I keep telling the employees how much I appreciate their help, especially in these fi- nancially tight times, but now I am going to show them. And be sure to replace those old, chipped coffee mugs.” Early on Monday morning, the CEO walked by the employee lounge. It looked terrific, and someone had already made coffee. He made a note to him- self to tell the COO what a great job she had done.
When he got to his office, he found the union steward sitting on the couch. “I need to have a word with you,” the union steward said. He had several words, as it turned out: He said that the CEO had vio- lated the collective bargaining contract and that refurbishing the employee lounge should have been, at minimum, discussed
Case
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with the union. The union steward spent 20 minutes complaining about violations and procedures. After he left, the CEO called the COO and told her to put the lounge back the way it was, including the chipped coffee mugs. Then the CEO muttered to himself, “That is the last time I try to do anything nice for any- one around here. I have learned my lesson.”
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Case Questions 1. What is the problem in this case? 2. Would you respond in the same way?
Why, or why not? 3. What, if anything, can be done at this
point?
Interview with a Nurse Activist
Note: This interview was conducted on May 25, 2004, with the cochair of the nurses’ union at a large, urban hospital in the north- east. She has more than 20 years experience as a nurse and definitely considers herself a nurse activist. Although the interview was conducted four years ago, the issues dis- cussed are still relevant today.
Times have changed in nursing. The nurse ac- tivist explained that now you cannot trust management, as they will tell nurses anything just to get what they want. In her opinion, even nurses who are promoted to manage- ment cannot be trusted. “Management lies,” she said. She explained that, at the end of a re- cent negotiation, management and union representatives did not even shake hands. There has been a loss of respect on both sides. It is ironic that at a time when management and nursing need to work together, a chasm of mistrust separates them. The main issues are not money, but human resources—that is, staffing, mandatory overtime, and workloads. Nurses are working harder and longer shifts; the potential for error increases in such envi- ronments. Patient safety and quality of care are at stake. According to the nurse activist, she was eight months pregnant and coming off of an eight-hour shift when she was or-
dered to work an additional four hours. “We are playing a game with patient safety,” she said. “Management should be held account- able for what they are doing.” As a result, nurses are going to the bargaining table to hold management responsible for the staffing decisions that are threatening patient care.
Nurses are also taking their case to the public. The nurse activist routinely appears on local television and radio shows to gather support for nurses. The community is a key stakeholder. After all, she explained, patients make up the community, and they recall who actually “cared” for them during hospital visits: It was the nurse with the bedpan at 2:00 a.m., or it was the nurse giving comfort to the parents of a sick child. It was not man- agement. With issues of patient safety and medication errors, nurses find it straightfor- ward to get the community on their side in demands for staffing and work hours.
Interestingly enough, Peter Drucker, who invented the field of management study, may agree with this nurse activist. He cited management for not treating nurses as pro- fessionals who know their jobs. Although he acknowledged that management is under a lot of financial pressure, Drucker said that in- stead of telling nurses what to do, manage-
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ment should invite nurses to find solutions to the problems (Petzinger 1999).
Think of a healthcare fa- cility in your community.
Consider its nursing situation. Then, answer the following questions: 1. Are the nurses treated as professionals?
Why, or why not? 2. If given the opportunity, do you think
these nurses are likely or unlikely to join a labor union in the future? Why, or why not?
Refer to Table 14.1. Us- ing the indicators listed in
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the table, conduct an audit of a hospital or a healthcare organization. Determine if the organization has experienced an increase or a decrease in any of the indicators. Then, explain the possible reasons for these in- creases or decreases.
Refer to Figure 14.1. Using the figure as a
guide, complete the table below by listing specific goals for the union and the organi- zation. Once the table is completed, iden- tify the following:
• Which goals are similar? • Which goals have the potential for
conflict?
Exercise 1
Exercise 2
Exercise 3
Goal Areas Union Goals Organization Goals
Survival
Growth
Profitability
Competitiveness
Recruitment and retention of employees
Motivation of employees
Flexibility
Decision making
Effective use of human resources
Communication
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Web Resources
1. For online listings of Private and Public Sector Agreements (Collective Bargaining Agreements) go to www.bls.gov/cba/cbaindex.htm. For example, agreements for Kaiser Permanente facilities can be found under “K” on the Private Sector Agreements web page.
2. At this time, the website for the California Nurses Association contains model RN con- tracts. The website also provides a listing of salaries and differentials, benefits, working conditions, staffing and professional practices, and performance committees, among other information. Sample contracts are also available for downloading, and these con- tracts will be updated per current bargaining. Because this is a union website, the infor- mation posted here will likely change over time. Visit www.calnurses.org/membership/ model-contracts/?print=t.
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