Health Care Human Resource Management

DQ2:

"The Effects of Unions"  Please respond to the following:

· Determine at least two methods that unions can use in order to aid physicians and their ability to provide quality patient care. Provide specific examples to support your rationale.

· Suggest two types of federal mediation and conciliation services that could potentially aid health care unions in solving health care human resources issues. Support for your response with concrete examples.

Chapter 8

Niles, N. J. (2013). Basic concepts of health care human resource management. Sudbury, MA: Jones and Bartlett.

Introduction

Because of the economic revolution in the United States, President William Howard Taft established the U.S. Department of Labor in 1913. Its mission was and is to promote the welfare of working people and the decency of their working conditions. By the end of World War I, the U.S. Department of Labor had established policies to ensure fair wages and decent working conditions so that human resources, employees, were treated fairly (Grossman, 1973). Early labor union organizations were established from the late 1700s to early 1800s because employees believed that management was not treating them fairly with respect to wages and hours. Early membership labor organizations represented different types of skilled employees, such as printers or carpenters, to ensure the fair treatment of the employees by management. Labor unions focused on job security, fair wages, and shorter working hours. Union membership reached its peak in the 1950s, but has declined over the past 20 years in many industries. Labor unions can be regarded as the predecessors of human resources departments (Byars & Rue, 2006). The goal of both is the equitable treatment of employees by management.

Despite the decrease in union membership, healthcare unions are increasing in strength, particularly in the nursing sector. In 2007, the Service Employees International Union (SEIU) created a national healthcare union, which is the largest healthcare union nationally. SEIU Healthcare represents hospital, nursing, long-term care, and many outpatient facility workers, and SEIU-affiliated unions represent physicians also. In 2010, the California Nurses Association and the United American Nurses merged and the Massachusetts Nurses Association created National Nurses United, the largest nurses union in the United States, representing 150,000 members (Malvey, 2010). This chapter will describe the history of U.S. union development, how unions are formed, legislation that affects unions, and the impact of unions on the healthcare industry.

 History of U.S. Unions

Unions are membership labor organizations formed to protect their members’ employee rights. Their main goal is to ensure that management treats its employees fairly. Although there were U.S. workers who organized them against unfair management practices in the 1700–1800s, it was not until 1935 that the National Labor Relations Act(Wagner Act) was passed to protect the right of workers to form unions. It also defined unfair labor practices and established the National Labor Relations Board (NLRB), which is responsible for National Labor Relations Act (NLRA) regulatory oversight. This is the only federal legislation that protects labor relations by allowing employees to form unions. Because of this legislation, union membership nearly tripled (Gentry, 2008). Section 7 of the act also allows collective bargaining, which is a labor relations term that refers to union negotiation with management for employment parameters such as wages and other benefits for the employees. The NLRB also ensures that union elections are fair. Between the 1950s and 1970s, union membership represented more than 25% of the U.S. workforce. The NLRA was amended in 1947 and 1959 by the Taft–Hartley Act and the Landrum–Griffin Act, respectively. Section 14b of the Taft–Hartley Act permitted states to pass right-to-work laws that supported the freedom of employees to choose whether to join a union or not. This act also permitted the president of the United States to declare that strikes or employee work stoppages as a means of protesting employee conditions could affect the national economy, thereby forcing union members to return to work without resolving their issues. This act exempted not-for-profit hospitals from NLRA coverage and was amended in 1974 (the Healthcare Amendments) to include private, not-for-profit hospitals and nursing homes. The act also instituted stricter rules regarding work stoppages to increase patient care protection, and it required 10-day strike and picket notices to employers to ensure that healthcare institutions would have ample notice of such activity. If employees do not respect the 10-day notice, they lose their status as employees. The Landrum–Griffin Act protected the rights of union members with respect to union meeting participation and review of union financial records. It also required unions to establish bylaws (Mathis & Jackson, 2006).

In 1989, an NLRB ruling declared eight units eligible for collective bargaining in acute-care hospitals: registered nurses; physicians; all other professionals such as social workers, physician therapists, and pharmacists; technical employees; clerical employees; skilled maintenance employees; all other nonprofessional employees; and security guards (Stickler & Gournis, 2010).

As the U.S. economy focused less on manufacturing and evolved into a service economy during the 1980s and 1990s, union membership declined. However, service industries such as health care are being targeted by union organizers because these industries are a large untapped source of potential union membership. In 2009, union membership represented 12% of all U.S. workers, which is a decrease from 24% in 1979. However, union membership in the healthcare industry is increasing slightly. In 2000, 12.9% of healthcare workers were unionized. In 2009, the percentage increased to 13.6%, or 1 million workers. Unions are hoping to increase their membership in the healthcare industry as the recession creates tension between workers and management via cost-cutting measures. Notably, the major reason unions are formed is that employees are dissatisfied with wages. Typically, a unionized worker earns more than 25% to 30% of the wage of a non-union worker, but in the healthcare industry, a typical unionized worker only earns more than 12% of the wage of a non-union employee (Elliott, 2010).

 How Unions Organize

Unions assess organizations to determine if a union will be successful in the organization. Dissatisfied employees are a target for union organizers. Unions can be formed in two ways. A union can launch a campaign to convince employees that if they form a union, it will help them improve their working conditions. Internally, dissatisfied employees may also decide to form a union because they believe that employees are unhappy with management. Usually, wages and benefits are the cause of union formation.

A union campaign is an organized effort to persuade employees to form a union. A campaign may consist of printed and electronic media, individual contacts, and/or special meetings. The sole purpose of these efforts is for the employees to sign union authorization cards that designate the union as the representative of the employees to negotiate employee benefits. At least 30% of the employees must sign an authorization card in order to hold an election to vote on union formation. Prior to the election, a bargaining unit must be designated. A bargaining unit is recognized by the employer as an appropriate group of employees who work in the same industry classification, have similar working conditions and wages, and have similar geographic location and supervisors. The bargaining unit is an organizational formation used for collective bargaining in labor negotiations (Mondy, 2012).

If at least 30% of the employees sign cards, then the next step is to hold an election by secret ballot. If more than 50% of the workers sign authorization cards, the union may ask management to recognize the union without an election. Both the NLRA and its amendments place restrictions on both sides with respect to organizing activities. Managers and unions may discuss wages, may exchange their points of view regarding unions, and may provide negative materials. Management can deny union distribution of materials at the workplace. Neither the union nor management can bribe the employees to vote for or against the union, threaten employees, ask the employees how they will be voting, or give campaign speeches 24 hours prior to the election. If an election is held, the union must receive a majority of votes to move forward. Once it is determined the election was fair, the NLRB certifies the election, and the union will represent its members in labor negotiations through the collective bargaining process (Mathis & Jackson, 2006).

 Negotiating with Unions

Once a union has been established in an organization, it now has the right to negotiate on behalf of the member employees. The NLRA defines collective bargaining as an “obligation of the employer and union to meet and negotiate in good faith regarding conditions of employment and to execute a written agreement that is reached in good faith by both parties” (National Labor Relations Act, Section 8d, 2010).

Mandatory negotiation issues focus on wages, management and union rights, job security, and benefits including vacation, sick leave, and health insurance. When an agreement is reached by both parties, a written agreement is implemented. The key to effective collective bargaining is that both parties negotiate in good faith, meaning they agree to listen to each other with an open mind in order to reach a final agreement (Malvey, 2010). If both sides agree, a written agreement will be implemented that outlines all of the agreed-upon employment issues including disciplinary actions by management and grievance issues by employees. This agreement is clearly articulated to both sides so management and the employees understand how they must act in the workplace.

When Collective Bargaining Fails

If the collective bargaining process does not result in an agreement, the company ultimately does not want to pursue legal action or deal with an employee strike because of the cost and the damage to the reputation of the company. If an agreement cannot be reached, other avenues to reach agreement are pursued such as mediation or arbitration, which are alternative dispute resolution measures. Alternative dispute resolution represents methods other than the court system that are used to resolve labor issues. Mediation is an informal process and is widely used. A third party tries to negotiate an agreement between the two parties. The suggestion by the mediator is not binding, which means both parties do not have to abide by the ruling. Arbitration is a formal process that negotiates an agreement that is binding, which means it has to be respected by both parties. If the employees are truly dissatisfied, they may not opt for these processes and instead decide to strike. A strike is a work stoppage by the employees until a satisfactory agreement is met (Mathis & Jackson, 2006). It is unusual now for employees to strike. Both parties attempt to resolve issues via alternative dispute resolution measures.

 Federal Mediation and Conciliation Service

Workers have been striking for centuries as a way of protesting unfair working conditions. In 1838, President Martin Van Buren settled a strike by shipyard workers, which was the first time the government mediated a labor settlement in the United States. In 1918, the U.S. Department of Labor created the U.S. Conciliation Service followed by the establishment of the National Mediation Board because of the Railway Labor Act, which allowed railroad unions to organize. The Federal Mediation and Conciliation Service (FMCS) was established in 1947 as part of the Taft–Hartley Act. The purpose of the FMCS is to minimize the effects of labor–management disputes on business operations. Since its establishment, the FMCS has been instrumental in resolving labor–management disputes through mediation and conciliation services. The NLRA requires 60 days’ notice by the employers or employee representatives that a Collective Bargaining Agreement (CBA) is being modified or terminated. The FMCS is also notified in case its services are needed (Federal Mediation and Conciliation Services, 2010).

 Individual Grievance Process

If an employee believes that management is not abiding by the collective bargaining agreement, the individual may grieve the issue. The grievance procedure is at the core of the CBA, of which the first step is for the employee to present the grievance to the immediate supervisor. If the supervisor is the issue, the employee will grieve at a higher level of management. The employee must present the grievance in writing, which is reviewed at each management level until it is resolved. Once the grievance is resolved, the review process stops. If the grievance cannot be resolved internally, a mediator or arbitrator will be introduced as discussed earlier (Byars & Rue, 2006).

 History of Unions and the Healthcare Industry

Over the past several decades, legislation has focused on collective bargaining inclusion of different healthcare employee classifications. What is becoming more important in the collective bargaining agreements is the eligibility of certain management employees. Many healthcare organizations’ goals are organized by team structures. Their organizational structures have become flatter with fewer levels of management concentration at higher levels of the organization, which creates confusion as to who is eligible and who is ineligible for union representation. Many employees who did not have a management role now have managerial responsibilities. Another issue is that eligibility of union membership is for employees only. Many healthcare employees may be independent contractors including nurses and physicians, which precludes them from union membership. These management trends must be clarified for unionization of certain healthcare employees (Sanders & McCutcheon, 2010).

There are two court cases that affect the supervisory status issues of nurses: Kentucky River Community Care, Inc. (NLRB vs. Kentucky River Community Care, Inc., 532 U.S. 706 [2001]), and the Oakwood Healthcare, Inc. (NLRB vs. Oakwood Healthcare Inc., 348, No. 37 [Sept. 29, 2006]). In 2001, with the U.S. Supreme Court decision NLRB vs. Kentucky River Community Care, Inc., the Supreme Court opined that the NLRB was not clear in its definition of supervisory status of an employee and required the NLRB to develop a new test to determine supervisory status of nurses. The revised definition developed by NLRB included the concept of “independent judgment” as an activity of supervisors, which means that nurses who were considered supervisors must routinely direct other nurses. However, a nurse can avoid the supervisor status if the independent judgment is the result of specific regulations or employee orders from the nurse’s supervisor. Using their revised definition of supervisory status, in the 2006 Oakwood Healthcare, Inc., case, the NLRB ruled that permanent charge nurses employed by the Oakwood Heritage Hospital were considered supervisors if they assigned and directed other nurses on a routine basis, which may result in their exclusion from the bargaining unit. However, the NLRB determined that if nurses were supervising other nurses on a part-time basis, they were eligible for union membership (Malvey, 2010). These two cases will continue the debate of whether certain nurses are considered management and whether they are excluded from union membership.

 Nurses and Unions

Nearly 3 million nurses are employed in the United States. They are employed predominantly by hospitals. By 2016, there will be a need for 500,000 more nurses. There continues to be a nursing shortage in the United States. With labor shortages, nursing salaries have risen. The main labor issue with nurses is the working conditions. Healthcare organizations have experienced financial problems because of the recession. More nonpaying patients are using hospital services, which increases the bad debt and charity expenses of hospitals. As a result of fewer paying patients, there has been downsizing in organizations, which has resulted in increased patient loads for nurses. Nurses originally focused on legislation to enact nurse–patient ratios, but the powerful hospital lobbyists restricted that avenue, so nurses have used unions to negotiate nurse–patient ratios (Carlson, 2010). There are four dominant unions that represent nurses nationally: SEIU, California Nurses Association (CNA), United American Nurses (UAN), and American Nurses Association (ANA) (Benson, 2009). The SEIU has organized hospitals so that nurses and ancillary staff are represented together.

American Nurses Association (ANA)

The ANA was formed in 1911 as a non-union nurses association, but by the 1940s it started to unionize its members. By 2000, it established collective bargaining divisions that were joined as the UAN, which was controlled by the ANA. The UAN joined forces with the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) with the ANA as the administrator and financier of the UAN. In 2003, the UAN became independent of the ANA while maintaining a relationship with the ANA. By 2007, the UAN’s membership was 108,000. The ANA denounced the UAN and terminated their relationship in 2008 (Benson, 2009). The ANA continues to be a powerful representative of nurses. ANANurseSpace is a social network for ANA members. The ANA also has a relationship with the Center for American Nurses, an advocacy organization (About ANA, 2010).

California Nurses Association/National Nurses Organizing Committee to National Nurses United

The CNA also started as a membership organization for nurses in management. In 1993, staff nurses took it over from management nurses and developed it into a labor organization with a collective bargaining focus. In 2006, it became affiliated with the AFL-CIO. It has evolved from representing California nurses to the National Nurses Organizing Committee (NNOC) with 86,000 members in hospitals, home clinics, and home health agencies. Membership has grown 400% over the past 15 years (About the California Nurses Association/National Nurses Organizing Committee, 2010). In 2009, it became a founding member of National Nurses United (NNU), the largest nurses union, representing 155,000 registered nurses. It competes with SEIU for membership.

Service Employees International Union

The SEIU is the fastest growing union in the United States with nearly 2 million members. It focuses on long-term care, hospital systems, and nurse alliances. The SEIU’s original name was Building Service Employees International Union, which had a focus on service in residential and commercial buildings. When the union opened its membership to the service industry, the union included healthcare employees. The SEIU Nurse Alliance represents 85,000 registered nurses in 21 states, but there appears to be discontent among its members. SEIU fears that the CNA can recruit unhappy members from the organization. The CNA is targeting states such as Texas, Nevada, and Ohio where SEIU nurses are unhappy with their representation. In 2005, the SEIU ended its relationship with the AFL-CIO, and in 2007, it established one of its sectors, SEIU Healthcare. SEIU negotiated a large labor contract with a private for-profit hospital chain in Florida. In 2010, the SEIU established a Nurse Alliance Quality Committees Program that focuses on health and safety, workplace quality, health information technology, policy, and training and education (2010 Nurse Alliance Quality Committees Program, 2010).

National Nurses United

In 2009, National Nurses United was established as the largest nurses union and professional organization of U.S. nurses. This “super union” was formed by three organizations: United American Nurses, Massachusetts Nurses Association, and California Nurses Association/National Nurses Organizing Committee. Its focus, like the focus of other unions, is on working conditions. Nurses continue to believe that they are not allowed adequate time to properly provide quality care to their patients (Who We Are, NNU, 2010).

 Physicians Unions

As discussed earlier, employees who are independent contractors and employees who are considered supervisors are not eligible to participate in collective bargaining. For example, during the 1990s when managed care organizations (MCOs) became a tool to provide healthcare services, many physicians contracted with several MCOs that did not allow the physicians to collectively bargain because the physicians were independent contractors. Many physicians also managed their own practices, which also placed them in a supervisor capacity. Therefore, there were few physicians that were eligible to form unions. In addition, there existed unionization issues with respect to residents and interns (house staff). However, in a 1999 decision, the NLRB ruled that residents and interns were employees and therefore could unionize. This landmark decision contradicted decades of discussion regarding these individuals (Nijm & Liang, 2001). The physician membership organization and powerful lobbyist for its members, the American Medical Association (AMA), was historically against unions because the organization believed it would be detrimental to the quality of patient care. The physician has the responsibility to treat patients regardless of ability to pay. What would happen if the physicians went on a strike because they were unhappy with their working conditions or wages? However, the advent of managed care bothered the AMA, and in 1999 it created the Physicians for Responsible Negotiations (PRN). According to estimates, in many instances managed care reduced physician income by more than 40% even though average physician income was very high (Farmer & Douglas, 2010). Despite the impact of managed care, the PRN, with few members, was not successful. The AMA eventually severed its ties with the group in 2004. The PRN, however, joined the SEIU with two other physicians unions, Doctors Council and the National Doctors Alliance. These three unions represent approximately 20,000 physician members.

Committee of Interns and Residents, National Doctors Alliance, and Doctors Council

The Committee of Interns and Residents is part of the National Doctors Alliance (NDA). Doctors who are employees in a nonsupervisory capacity in a facility, hospital, university, medical center, or in private practice can join the NDA. Formed in 1973, the Doctors Council represents doctors employed in New York City. It is the sister organization of the Committee of Interns and Residents, founded in 1957 by New York City interns and residents, which is the largest house staff union in the country, representing 13,000 residents in several states. In 1958, it negotiated the first collective bargaining agreement for residents and interns. In 1975, it negotiated the first contractual agreements for on-call scheduling for residents and interns. In the 1990s, it negotiated set hours for house staff in New York State and in other states. These time limitations have been instrumental in establishing model programs throughout the United States. It is obvious that both the nurses and physicians unions have increased their strength by their affiliation with SEIU Healthcare. The adage “strength in numbers” certainly applies to the strategies of forming larger organizations (About CIR, 2010).

 Allied Health Professionals Unions

Like the nurses and physicians unions, the unions that represent allied health professionals have joined forces, although efforts are primarily state-based with 15 unions. The Health Professionals and Allied Employees is the largest union of nurses and allied health employees in New Jersey, representing 12,000 members. In 1978, it became affiliated with AFT Healthcare, which is a healthcare division of the American Federation of Teachers (AFT). The union membership includes nurses and medical researchers, dieticians, physicians, psychologists, X-ray technicians, and other healthcare professionals from 17 states. Members work in hospitals, nursing homes, schools, laboratories, blood banks, clinics, and home health agencies (About AFT Healthcare, 2010).

 Conclusion

Regardless of the industry, unions are formed because employees are dissatisfied with their jobs. Either the wages are too low or the working conditions are poor. As healthcare expenditures continue to increase, healthcare reform will continue to focus on cost reduction. Managed care models targeted labor costs, which resulted in physicians and nurses becoming disgruntled because they were worried about quality of patient care (Schraeder & Friedman, 2002). Nurses formed unions because they were less concerned with wages than with quality working conditions to ensure patient care. Residents and interns were also concerned with working conditions because of the traditional long hours they endure while training. Establishing a union resulted in limited working hours for them. Allied health professional unions have been established to ensure that fair wages are being applied in their industry. It has been difficult for physicians unions to become more powerful because so many physicians are self-employed and are excluded from union membership. There are also exceptional health systems such as the Cleveland Clinic, which is excellent to its physician employees (Romano, 2001). With the advent of healthcare reform legislation and the reduction of reimbursement for physician services to Medicare and Medicaid patients, there may be more of a reason to organize. Over the past 5 years, unions won 70% of healthcare organizing efforts, with New York, California, and Illinois representing nearly 50% of the total elections (By the Numbers, 2009). In 2009, there were 11 strikes, which affected 2,600 workers, or 238 workers per strike, which is fairly low. In 2010, there were seven strikes involving 14,000 workers, or 2,000 workers per strike (Commis, 2010).

Regardless of goals, union formation in the healthcare industry is characterized by mergers of several unions to increase their voice in dealing with employers. Large unions such as the AFT and SEIU have established separate legal entities that represent healthcare issues. Although union membership has declined in the United States over the past decades, union membership in the healthcare industry has increased.

Particularly in the healthcare industry, it is important that employees are satisfied with their jobs and strive to perform at above-average levels. Dissatisfied employees may result in poor performance. Nurses are dissatisfied with their working conditions. These employees provide direct services to patients. The Institute of Medicine’s research indicates that more than 80,000 to 100,000 errors occur each year leading to patient death as a result of improper treatment (Emanuel, 2008). The Agency for Healthcare Research and Quality recently supported that an increase in nurse staffing would improve patient safety and reduce negative patient care (Carlson, 2010). Therefore, from a management perspective, it is important that quality employees be retained. The following are suggestions for management to satisfy its unionized and non-union employees:

1. Procedural justice: It is important that employees perceive that they are being treated fairly and that methods to determine outcomes are standardized (Hitt, Miller & Colella, 2006). Job analyses, job descriptions, job specifications, job recruitment, and performance appraisals must be implemented objectively to ensure that employees believe they are being treated fairly with the outcomes of these procedures. Written standard operating procedures for each of these tasks must be developed to ensure there is objectivity for each of these categories.

2. Employee training and development: Employees must be trained for their positions to ensure they perform effectively. In addition to job performance, management must also be trained in the organization’s policies in order to manage its employees effectively.

3. Performance appraisals: If an employee believes he or she is not being fairly evaluated on job performance, he or she may file a grievance or complain to senior management. Applying procedures fairly to all employees creates a culture of justice and avoids conflict.

Strikes can have a devastating impact on a healthcare organization, particularly when nurses go on strike, because any work stoppage could have a dramatic effect on quality of patient care. In a recent hospital study in New York, Gruber and Kleiner (2010) indicate that during the period 1984–2004, nurses’ strikes led to a 19.4% increase of in-house mortality and a 6.5% increase in readmissions. Management should have a plan in place as described earlier that recognizes that employees are assets not just costs and, particularly in the healthcare industry, should be rewarded for quality performance.