Labor Relations
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All we do is work SM An update on current labor, employment, benefits and immigration issues concerning the health care industry Labor Relations Special Report on Health Care Organizing Competing Unions Rush to Attract Nurses Before Labor Board Issues Adverse Rulings n a flurry of competing announcements and health care union conference they should be shifting alliances, the Change to Win’s SEIU concerned that a pending decision by the NLRB Iand a number of AFL-CIO affiliates are will limit the right of nurses to organize and attempting to reach the two million nonunion engage in collective bargaining. Addressing the Vol. 32 • No. 1 • Spring 2006 nurses while the possiblity of an unfavorable professional issues conference of AFT National Labor Relations Board decision hangs Healthcare, the health care division of the overhead. The unions are predicting the Labor American Federation of Teachers, Feinstein-- Inside... Board will rule in another major case on the now a visiting professor in the School of Public LABOR RELATIONS legal definition of “supervisor” under the Policy at the University of Maryland--said that Special Report on Health Care Organizing ........................... 1 National Labor Relations Act, an issue crucial to he expects the NLRB sometime this year to Competing Unions Rush to organizing efforts since employees whose decide what is the standard for determining Attract Nurses Before Labor duties are “supervisory” do not have the right whether a nursing employee is a supervisor not Board Issues Adverse Rulings ..... 1 to unionize. covered by the NLRA. Three pending cases Recent Rulings Have Curtailed Noting that in recent years the Labor Board has revolve around whether certain employees, NLRA Coverage............................ 2 handed down several decisions limiting who is including charge nurses, are supervisors Health Care Setting Presents exempt from the protections of the NLRA. Special Challenges...................... 2 covered by the NLRA, former NLRB General Counsel Fred Feinstein told delegates to a Unions Compete to Organize Nurses in Face of Possible Adverse Ruling ............................ 2 Reason for Optimism for Health Care Employers................ 3 Recent Rulings Have Curtailed NLRA Coverage Union’s Mock Funeral Procession in Front of Hospital Using ecent Labor Board decisions involving who the Board’s interpretation of the law has con- Nonunion Labor Violates NLRA ... 3 are supervisors have cut back on NLRA cov- stantly shifted to assure nurses are found to Want to Learn More About the erage for graduate student teaching assis- be “employees,” not “supervisors.” Several New Labor Activism Impacting R Health Care Employers? .............. 4 tants in Brown University, 342 N.L.R.B. No. 42, courts, including the Supreme Court, have 175 LRRM 1089 (2004); for severely disabled noted the NLRB has tended to apply the WAGE AND HOUR Supreme Court Sends High individuals performing janitorial work through a definition differently to nurses than to Stakes Home Companion nonprofit center in Brevard Achievement Ctr. employees in other industries. Overtime Claim Back to Appeals Inc., 342 N.L.R.B. No. 101, 175 LRRM 1329 Court for Second Look ................ 4 To be a “supervisor” under the law, an employ- (2004), and for temporary workers supplied by ee must possess the authority to engage in one MANAGEMENT EDUCATION staffing firms in M.B. Sturgis, 331 N.L.R.B. 1298, OPPORTUNITIES or more stated “supervisory” duties. The Still Time to Register for Jackson 165 LRRM. 1017 (2000). This trend to limit supervisory quality which most often applies Lewis Corporate Counsel NLRA coverage may indicate the Labor Board Conference .................................. 6 to nurses is the responsible direction of subor- will define supervisory duties in the consolidat- dinates through the use of independent judg- How to Stay Union Free: ed cases under review to include those per- Today’s Unions Have ment. Unfortunately, the NLRA does not specif- Changed to Win – Have You? ....... 7 formed by nurses and exclude them from the ically define responsible direction or independ- protection extended to “employees.” Jackson Lewis ent judgment. To a large degree, these are the e-Subscription Services .............. 8 For about thirty years, the NLRB has struggled terms the Board has so often manipulated in with the definition of “supervisor” as it applies health care cases. to nurses in health care institutions. Critics say 31 Health Care Setting Presents Special Challenges n 2003, after the Supreme Court rejected the Labor Board prefers to reserve the most significant cases Board’s test for supervisory status in Kentucky River (such as these) for decision by all five members. ICommunity Care Inc. (2001), the NLRB determined Since 2003, the Board has not been at full capacity, it would address the endless cycle of litigation over however, several recent recess appointments have these terms. The Board then consolidated several filled all positions. Now, with five voting members, supervisory status cases (Oakwood Healthcare Inc., the Board has acknowledged that a decision on this No. 7-RC-22141; Golden Crest Healthcare Center, No. important issue can be expected in the coming 18-RC-16415; and Croft Metals Inc., No. 15-RC-8393), months. and took the unusual step of requesting that interest- Unions see that the current NLRB, dominated by Bush ed parties provide advice in defining the troublesome appointees, is likely to end the favorable tilt in their terms. In response, Jackson Lewis partner Tom Walsh direction on this issue. This is a major concern for and associate Mike Hekle filed a “friend of the court” labor, not only because a decision favorable to man- brief on behalf of the American Health Care agement’s interpretation of the law would significantly Association and other industry groups. limit the ability of nurses to unionize, but because in Often, the five-member Board delegates authority to some circumstances, it could also result in the termi- rule on cases to a three-member panel. This allows nation of bargaining obligations for existing nurse more cases to be decided in less time. However, the units. Two Labor Federations Target Nonunion Nurses he Service Employees International Union, affiliat- they represent the majority of organized registered ed with the Change to Win Federation, represents nurses and other health care workers in the United Tmore nurses than any other single union; however, States, including 84,000 SEIU members and 100,000 various AFL-CIO unions together represent over UAN members. The agreement calls for joint organiz- 200,000 nurses. As many commentators have noted, ing drives, mutually identified strategies and targets, the AFL-CIO and Change to Win unions are now projected budgets, staffing needs and timelines, and a competing to organize the most employees. pact not to raid or undermine each others’ established The pending Labor Board’s decisions have added collective bargaining relationships. fuel to the organizing fire. Then, in March, the SEIU announced that it is forming In February, eight AFL-CIO unions created a trans- a new organization of its 84,000 registered nurse union industry coordinating committee, or ICC, called members to focus on increased staffing levels, higher “RNs Working Together,” for the purpose of organizing wages, recruitment efforts, and patient care issues. the two million remaining non-union RNs. The The “Nurse Alliance of SEIU” will address increasing prospect of nurses being considered “supervisory” medical costs and consolidations among hospitals greatly alarms the union, and according to a leader and other providers, according to President Andrew of the alliance, RNs Working Together will not accept Stern. The group will remain a part of the SEIU, with an unfavorable decision. The ICC “will not let that a first-year budget of $6 million and a dedicated staff. right be taken away without a fight. All the unions According to an SEIU spokesperson, current collective are prepared to stand together,” said Ann Twomey, bargaining unit members will be affiliated with the president of an affiliate of the American Federation of new group, and RNs who wish to join but are not Teachers, one of the ICC's members. “It is the covered by a union contract will become members alliance's intent to go to legislatures, communities, of the alliance. The union hopes the formation of this and stand up in workplaces. We will reach out to legis- alliance between union and nonunion nurses eventu- latures and the public and make sure a bad ruling gets ally will lead the nonunion members to elect the reversed,” she added. SEIU to represent them. Meanwhile, the SEIU, now a member of Change to Win, has announced two programs for the same purpose of reaching the unorganized in health care, including nurses. In January, the SEIU and the United American Nurses Association, an AFL-CIO affiliate, announced an agreement to work together on organiz- ing, collective bargaining, and advocating for changes in the health care system. The two unions said that 2 Reason for Optimism for Health Care Employers hile it remains to be seen how the Board will rule • Assert pressure on employers through media in the three consolidated cases on supervisory campaigns, demonstrations, and at the bargaining Wstatus, there is reason to be optimistic that the rul- table to refrain from withdrawing recognition of ings will be consistent with the law and realistically nurse units. reflect the health care workplace.