Ensure nurse supervisors' work reflects their status
Labor board decisions could encourage unions
Two recent decisions from the National Labor Relations Board (NLRB) could make it easier for charge nurses to join unions if hospitals do not define their job status properly, legal experts warn. The Washington, DC-based NLRB is the federal agency that hears all labor disputes.
Now is the time for hospitals to review the job descriptions and functions of these nursing supervisors before charge nurses organize into collective bargaining units at their facilities.
In the first decision, which was eagerly awaited by the labor and health care community, the NLRB ruled that charge nurses at Providence Hospital in Anchorage, AK, were not considered to be supervisors under federal labor law and were therefore protected by the law in their rights to organize for collective bargaining purposes and to engage in other concerted activity, says Barbara Sapin, JD, general counsel for the American Nurses Association in Washington, DC.1
In the second case, the NLRB ruled that licensed practical nurses in a New York nursing home who oversaw the work of certified nursing assistants in a routine manner were not supervisors under federal law, Sapin explains.2
The labor board's rulings in these cases have strong implications for growth of collective bargaining units in health care industry. More than 2 million registered nurses already are organized in the United States and the numbers are growing as managed care is forcing more and more health care facilities to cut costs.
NLRB adds to hospitals' requirements
The NLRB's decisions are not good ones for health care employers, says John Lyncheski, JD, a partner in the health care law firm of Cohen & Grigsby in Pittsburgh. The decisions place a greater burden on hospitals in defining the role of a supervisor if the institution wants to limit charge nurses' ability to join a union.
The classification of a supervisor hinges on the nurse's work responsibilities. Employers must be able to show that a charge nurse exercises independent judgment in order to prove that a nurse is a supervisor.
The decisions are likely to have to two ramifications that health care risk managers need to be aware of:
* Difficulty keeping charge nurses out of unions. If there is organizing activity at a health care institution, the employer will have more of an uphill battle to keep people who serve as charge nurses from joining a bargaining unit, Lyncheski says.
* Mixed loyalties. "Having charge nurses in the bargaining unit has a number of adverse consequences," Lyncheski says. "It creates mixed loyalties. Instead of their loyalties only being to the institution and to patient care, there will be a different kind of peer pressure in the environment -- pressure not to do things that negatively affect the union or to rat on a union sister or brother.
Unions can create dilemmas for nurses
"It will create a dilemma for the charge nurse because there will be times when they have to make a decision or act on things that are done improperly. Having them represented by a union puts them in between a rock and a hard place."
But hospitals can take a few simple steps to try to ensure that charge nurses will be held to be supervisors, thereby prohibiting their participation in collective bargaining units, legal experts say.
1. Review job descriptions. The NLRB has a 13-part definition of a supervisor. Risk managers should review the job descriptions of nurses that they intend to be supervisors and have those job descriptions reflect as many of the NLRB's definition as they can, Lyncheski advises.
2. Limit the number of charge nurses. In the Providence Hospital case, the hospital had rotated the charge nurse responsibility through every nurse. The NLRB is not likely to find every charge nurse to be a supervisor. Instead, identify those nurses you want to be charge nurses and assign only those people the responsibilities of that position at your hospital, Lyncheski says.
3. Beef up job responsibilities. Part of the NLRB's decision in the Providence Hospital case rested on the fact that the charge nurses' only responsibilities were assigning and directing the work of other nurses in their hospital unit, says Laurence Arnold, JD, a partner in the law firm of Foley, Lardner, Weissburg & Aronson in San Francisco.
To be considered supervisors, risk managers should make sure charge nurses' job responsibilities include meaningful participation in supervisory activities such as hiring, promotions, performance reviews, discipline, and vacation scheduling, Arnold advises.
Tread carefully
If nurses do begin to form collective bargaining units, tread carefully, legal experts advise. While labor laws require the input of a specialist in the field, lawyers say hospitals can run afoul of the law if not careful. Following are a few tips on dealing with union activity in your hospital:
* Recognize that supervisors' actions are your actions. Under the law, any action or statement made by a supervisor is considered to be endorsed by the employer, in this case, the hospital.
* Do not interrogate employees. Employers are not allowed to question employees about their union sympathies or about the views or actions of co-workers.
* Do not subject employees to surveillance. Employers cannot surveil or hire someone to surveil their employees at off-premises union meetings, nor can they have a supervisor stationed near employees discussing the subject on hospital premises, Arnold says.
* Do not make promises for nonunionization. "You cannot promise them as a group a pay increase or better benefits or more favorable employment terms if they vote down a union," Arnold says. "Conversely you cannot threaten them with the loss of anything [if they join one]."
* Do express your views. Hospitals can state their views on the benefits of unions, as long as they are not expressed in the form of a threat. "Do it carefully," Arnold advises. "Tell them in the today's competitive health care environment that everyone needs to work together instead of as adversaries."
References
1. NLRB v. Providence Hospital 320 NLRB No. 49 (1996).
2. NLRB v. Ten Broeck Commons 320 NLRB No. 65 (1996). *
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