Nurses and Collective Bargaining: Basic Facts and Considerations

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Nurses and Collective BargainingBasic Facts and
Considerations
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How the Bargaining Process Works
Employee interest in unions has always met with
fierce resistance from employers in all
industries. Within the healthcare industry,
opponents of unions argue that they create
internal struggles which detract from a
hospitals mission to provide high quality
service to patients. However, there is concrete
evidence that collective bargaining, when used
effectively, actually facilitates delivery of the
best care and services. For collective
bargaining to occur, eligible employees must
select a bargaining agent like Michigan Nurses
Association, usually by secret ballot election.
The following information provides a very basic
overview of how collective bargaining works in
the private sector.  
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The Legal Framework for Collective Bargaining
The National Labor Relations Act (NLRA), amended
by the Labor Management Relations Act
(Taft-Hartley Act), is the federal law governing
labor relations in the private sector. Section 7
of the NLRA states that employees have the right
to self-organize to form, join, or assist labor
organizations and to bargain collectively
through representatives of their own
choosing. Since enactment of the National Labor
Relations Act in 1935, nurses and other employees
of private, for-profit healthcare institutions
have been protected in their right to organize
for collective bargaining purposes. Under the
provisions of the Act, as amended in 1974 (Health
Care Amendments), employees of voluntary,
not-for-profit health care institutions also were
granted the same rights and protections. Over
the years, there has been considerable debate
over the composition of bargaining units in the
healthcare industry. After much deliberation,
the National Labor Relations Board (NLRB) issued
rules in 1989 on unit composition. Under the
rules, eight units (including one limited in its
composition to registered nurses) were deemed
appropriate. As expected, employer opposition to
the NLRBs rulemaking resulted in litigation
challenging and delaying the implementation of
this ruling However, in April 1991, the U.S.
Supreme Court unanimously upheld the National
Labor Relations Boards rule-making authority.
This ruling is regarded as a significant victory
in support of the workplace rights of nurses.
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Organizing a Union
It would be extremely difficult for one person to
organize an entire facilities nursing staff.
Consequently, it is important to identify a core
group of nurses who share common issues and
concerns and who are supportive of organizing.
If possible, this group should be representative
of different shifts and practice areas and be
well known and respected by the nursing staff and
other personnel. These nurses will assume
initial responsibility for personally soliciting
other supporters and stimulating general interest
in organizing activities.
The nature and extent of nurses issues and
concerns are key factors in determining the
degree of support for an organizing campaign.
Oftentimes, professional and personal concerns
are stronger motivating forces for organizing
than economic considerations. To conduct an
effective campaign, there needs to be a broad
base of issues and concerns common to nurses in
various departments and units and on different
shifts.
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Research Before launching a campaign, it is
important to know as much as possible about the
history, structure, organization, finances and
administration of the hospital as well as other
rules and regulations as well as an accurate
picture of the treatment of nurses in all areas
of the facility with regard to wages, benefits
and employment practices. Planning an organizing
campaign should include a) selection of an
organizing committee, b) identification of major
campaign issues, c) delineation of specific
organizing activities with a projected
timetable, d) development of specific strategies
for countering employer tactics, and e)
determination of a system for keeping lines of
communication open with nurses.   Structure In
the early stages, attention should focus on the
organizing campaign. Once there is a strong
indication of support (close to filing a petition
for a representation election or during a
pre-election campaign), it is time to move toward
a more permanent structure and a more formal
relationship with MNA. This phase of the process
involves the adoption of bylaws and the election
of officers.
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Recognition An employers formal recognition or
NLRB certification of a representative of the
majority of the unit is necessary before the
process of negotiating a bargaining agreement can
begin. To seek voluntary recognition by the
employer, a public petition must be signed by a
majority of nurses. The larger the majority, the
better. More than likely, an employer will
refuse to voluntarily recognize the bargaining
unit of nurses and its designated representative.
When this occurs, it is necessary to establish
majority status through a representation election
conducted by the National Labor Relations Board.
To file a petition for a representation
election, the public petition must be signed by
at least 30 percent of the nurses in the proposed
unit. However, it is advised that a petition not
be filed with the regional NLRB office until
signatures have been obtained from a clear and
substantial majority, excluding supervisors and
managers. Upon receipt of a petition, the
regional director of the NLRB will attempt to
reach agreement between the employer and the
union/Michigan Nurses Association on several
issues, including the definition and scope of the
proposed unit. In the event that agreement is
not reached, a hearing may be scheduled.
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Election After the pre-election issues have been
determined, the NLRB will set the date for an
election by mutual agreement of the two parties
(employer and MNA). After the NLRB has set the
date of the election, copies of the Boards
official Notice of Election will be posted at the
employers facility in places where notices to
employees are normally posted. This notice will
include the date, hours and places of the
election payroll period for voter eligibility
description of the voting unit a sample of the
ballot and general rules as to the conduct of
the election. If the majority of voting nurses
(50 percent plus one) select MNA, it will be
certified by the NLRB as the exclusive bargaining
agent. The employer is then required to
recognize this agent and to bargain in good faith
for a collective bargaining agreement. If a
majority of voting nurses opposes representation,
the Board will certify these results a tie is
considered a loss.
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Negotiating a Contract
Once the NLRB has certified MNA as the exclusive
bargaining representative, the next step is for
the bargaining unit to elect a negotiating
committee and to request the employer to start
contract negotiations. For the nurses covered
under a collective bargaining agreement, the
contract outlines the terms and conditions of
employment. Topics commonly covered include
employee status, work time, salary and related
pay, fringe benefits, discipline, grievance
procedure, health and safety, nondiscrimination,
in-service education, continuing education,
leaves of absence, holidays, management rights,
strikes and lockouts, layoffs, retraining and
termination. Many contracts also address
professional issues. Contracts negotiated by MNA
often include language on the role of the nurse,
non-nursing duties, staffing, professional
practice committees, tuition reimbursement,
mandatory overtime and benefits after retirement.
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Negotiating Committee Throughout the organizing
process, nurses in the unit will have identified
major areas of concern. More than likely, these
concerns will form the basis for key contract
proposals. The negotiating committee will
explore ideas for contract proposals with unit
members. With the assistance of the Michigan
Nurses Association, the committee will develop
written proposals. Throughout negotiations, the
committee should keep bargaining unit members
apprised of the progress or lack of progress on
contract provisions and seek direction from the
membership as needed. When a tentative agreement
is reached, the negotiating committee will
present the agreement to the membership for
ratification (acceptance) or rejection.  Scope of
Bargaining There are usually three broad
categories into which negotiations may be
classified mandatory, prohibited and
permissive. All three categories are addressed
in both public and private sector bargaining.
However, the subjects in each category can vary
greatly depending on applicable law and judicial
interpretation. Parties are obligated to
negotiate on mandatory subjects of bargaining.
In the private sector, wages, hours and other
terms and conditions of work are considered
mandatory subjects. In the public sector, the
scope of mandatory subjects of bargaining is
often far narrower. Legislatures may decide that
certain subjects may not be appropriate for
bargaining (prohibited subjects). In the
federal sector, for example, wages a mandatory
item in the private sector is a prohibited
subject. One example of a prohibited subject in
the private sector is a closed shop cause. It is
illegal to negotiate a union security arrangement
requiring union membership as a condition of
obtaining a job. The third category, permissive
subjects, consists of items that the parties may
not insist that negotiations go to impasse over.
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Good Faith Bargaining The National Labor
Relations Act requires that parties negotiate in
good faith. Both bargaining unit and management
representatives must demonstrate a sincere and
honest intent to consummate a labor agreement and
exhibit reasonableness in their bargaining
position, tactics and activities. If either
party fails to live up to this bargaining
obligation, an unfair labor practice charge may
be filed. However, the fact that an impasse is
reached does not necessarily show lack of good
faith. The National Labor Relations Act does not
specifically require that a party must agree to
the others proposal or make a concession to the
other. In other words, as long as an employer is
willing to discuss mandatory subjects with the
bargaining representative at reasonable times and
places, the employer is not required to make any
compromises.  Dispute Resolution Should impasse
occur in the collective bargaining process,
several options exist, including mediation,
interest or contract arbitration,
mediation-arbitration and fact-finding. These
four resolution approaches utilize third parties
to either facilitate the negotiation process or
to resolve the bargaining differences in a
binding matter. In an effort to minimize work
stoppages (strikes), the 1974 Health Care
Amendments to the National Labor Relations Act
include various negotiation modification
procedures for health care facilities. This
legislation provides for contract expiration
notice, advance strike notices, mandatory
mediation and the option of establishing boards
of inquiry prior to a work stoppage. In the
health care industry, strikes occur less than two
percent of the time.
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Enforcing the Contract
Once an agreement is ratified by both parties, a
contract will be signed by the duly authorized
representatives of management and the bargaining
unit. Signing the contract, however, does not
mean that collective bargaining is suspended
until it is time to negotiate a new contract.
There remains an everyday need for an agreement
on everyday matters. Even with the most
carefully written contract and in the best-run
institutions, this need exists. The solution to
day-to-day difficulties between nurses and their
employer is reached through a grievance
procedure. A formal plan is established in the
contract outlining the channels for adjustment of
grievances through progressively higher levels of
administration.  
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Grievance Handling From the individual nurses
point of view, grievance handling may well be the
most important aspect of collective bargaining
since grievances are matters that affect an
employee in very personal ways. Thus, the
grievance procedure becomes a very significant
provision in the contractual agreement. Through
the grievance mechanism, the agreement ceases to
be a piece of paper and collective bargaining
comes alive. The ideal grievance procedure
assures that an employees complaint is handled
fairly, quickly and without fear of reprisal.
The essential components should Provide for
consideration of all complaints so that important
problems are not ruled out due to technicalities.
Provide for simple steps and time limits, as
this encourages fixing of responsibility and
results in prompt settlement at the lowest
possible level. Provide for employee
representation at each step so that complaints
are presented properly and are assured of a fair
hearing. Provide for ultimate decision making
by an objective and impartial third party, or,
at the very least, examination/review by an
independent, neutral party. A key element in a
fair grievance procedure is the orderly series of
steps, progressing upward through successively
higher levels of administration and ending in
binding arbitration. Time schedules for handling
grievances may vary from contract to contract,
but the ultimate objective is to expedite the
grievance as quickly as possible.
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Nurses Representing Nurses Protecting nurses
and nursing interests requires more than
knowledge in labor relations. Nursing expertise
is essential. Only with MNA can nurses have
both!  No one can force a bargaining unit to
strike. Only unit members themselves can make
such a decision.
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Common Issues and Concerns about Unions and
Collective Bargaining Q Doesnt involvement in
a union weaken the professional image of
nurses? A As the largest professional union and
association for nurses, the Michigan Nurses
Association has long supported and encouraged
collective bargaining for nurses. It is viewed
as a means to an end a workplace mechanism to
effect, maintain and upgrade the standards set by
nursing. As such, it is a professional
endeavor.   Q Can a hospital take punitive
action against nurses who try to organize? A The
National Labor Relations Act makes it unlawful
for an employer to interfere with, restrain, or
coerce employees in the exercise of their right
to organize or discriminate against an employee
with regard to hiring practices, tenure of
employment, or any term or condition of
employment in order to encourage or discourage
membership in a labor organization. This means
that an employer cannot express or imply a threat
of reprisal for organizing, or promise a benefit
for refraining from organizing. Although an
employer is prohibited from engaging in certain
types of activities to thwart organizing, this
does not mean employees will not encounter strong
opposition. Employer propaganda and anti-union
tactics can be anticipated. An employer has the
right to voice its opinions and attitudes about
unions and the unionization of its operations,
provided its communications and actions carry no
direct or implied threats toward employees.
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Q What types of organizing activities are
permissible in the hospital? A The National
Labor Relations Board has stated that nurses have
the right to engage in union solicitation during
their free time while at work, provided that such
activities are conducted in non-patient care
areas and are considered with solicitation
opportunities afforded other organizations.
There are three limitations on union solicitation
during the workday. 1. The time during the day
when such activities may be conducted 2. The
locations within the hospital, and 3.
Conformity with solicitation opportunities
afforded other organizations
Q How does MNAs affiliation with UAN and the
AFL-CIO help nurses? A The United American
Nurses (UAN), the national union for the American
Nurses Association (ANA), is the nations largest
union of registered nurses. It works to shape the
future of all staff nurses and the health care
system for the better by improving the economic
and general welfare of nurses, providing a
quality work environment, protecting nurse and
patient safety, and influencing nursing practice
standards. The AFL-CIO is a federation of
sixty-four national and international labor
unions, of which UAN is one, that represents
thirteen million working women and men including
nurses, teachers, public employees, doctors,
pilots, and many other American workers. Working
together in union is key to solving the
challenges we face in the health care industry.
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Q Can nurses be forced to go on strike? A No
one can force a bargaining unit to strike. Only
unit members themselves can make such a decision.
Experience has shown that nurses who have chosen
to strike have done so as a last resort. It
should also be noted that if nurses decide to
strike, they do not abandon their patients on
short notice. There are legal safeguards to
prevent such actions. Provisions set forth in the
1974 Health Care Amendments to the National Labor
Relations Act guarantee continuation of adequate
patient care by requiring contract expiration
notice, advance strike notice, mandatory
mediation and the option of establishing a board
inquiry prior to a work stoppage.
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• Q How can nurses determine the best bargaining
  representation?
• A As the largest group of health professionals,
  RNs have long been the target of many unions.
  Michigan Nurses Association first began
  representing nurses at the bargaining table in
  the 1940s. MNA collective bargaining programs
  have met with considerable success, both in
  numbers and in the nature of issues addressed in
  contract negotiations. For years, the MNA has
  represented more nurses for collective bargaining
  purposes than any other union in the state.
• While MNA continues to represent the most nurses,
  the number of nurses represented by other unions
  continues to grow. The fact that several unions
  have created new structures to accommodate health
  care employees is additional proof of their
  intent to organize more nurses.
• When choosing representation, nurses need to
  consider
• Can the union adequately understand and represent
  nurses unique needs?
• How does the union work to promote the
  professional concerns about nursing practice and
  patient safety?
• How much control do individual members exercise
  over bargaining unit activities?
• Is the union committed to the goal of service to
  which nurses subscribe?
• Nurses who have chosen Michigan Nurses
  Association as their bargaining agent know that
  the union reflects the strength of the individual
  nurses working collectively- and because they are
  strong, MNA is also strong.

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What the Michigan Nurses Association has
Accomplished at the Bargaining Table The Michigan
Nurses Association is recognized as a trendsetter
at the bargaining table, securing outstanding
contracts for the nurses whom we
represent. Quality of Patient Care MNA negotiated
contracts also address measures to ensure quality
nursing care, including Strict limitations on
the use of mandatory overtime. Creation of
professional practice and patient care
committees. Regulation of the use of temporary
nurses. Restriction on the tasks performed by
ancillary personnel. Protest of Assignment
and Documentation of Practice Situation
formsused to record faulty, unsafe or poor
patient care situations. Limiting the use of
mandatory overtime.
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Staffing Patterns MNA has been successful in
getting employers -To designate specific
non-nursing functions that nurses will no longer
be required to perform. -To establish advisory
committees to review staffing issues and to
assist in formulating staffing standards and
policies. -To establish staffing ratios in every
department of the hospital.   Health and
Safety MNA has negotiated language providing
for -Health and safety committees. -Free
hepatitis B vaccine and follow-up procedures to
determine whether immunity has been
obtained. -AIDS screening free of charge to any
nurse exposed to blood or other bodily
fluids. -A procedure for informing RNs who may be
at risk of exposure to an infectious agent or
agents as a result of responsibility for the care
of a patient.
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Job Security Especially important in an
environment of redesign and downsizing, MNA has
negotiated language that Forbids layoffs of RNs
during the life of the contract and/or forbids
replacing RNs with any other classification of
employee. Provides for recognition and contract
continuity in the event the hospital is sold or
acquired. Outlines retraining and cross-training
programs and opportunities for nurses who might
be at risk for layoff. Details seniority and
layoff and recall procedures.
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Economic Gains As a bargaining agent, MNA has
succeeded in winning -Significant base pay
increases. -New staff nurse classifications. -A
dditional tenure steps and higher rungs on career
ladders. -Improved differentials for education,
experience and shift work.   Fringe
Benefits While employers have sought to reduce
the costs of fringe benefits, MNA has secured
provisions for -Retention of benefit packages
with no change in deductibles or reductions in
benefit levels. -Expansion of employee
assistance programs. -Improvements in tuition
reimbursement and allowances for educational
leave. -Continuation of health insurance after
retirement. -Alternative retirement
benefits. -Improved pension plans.
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For more information on organizing a union please
contact Alyson Wolvin, ext. 20 Jennifer Keenan,
ext. 21 Terri Premo-Peaphon, ext. 23 At
1-888-MINURSE OR Alyson.wolvin_at_minurses.org Jennif
er.keenan_at_minurses.org Terri.peaphon_at_minurses.org