The National Labor Relations Act (NLRA), amended by the Labor
Management Relations Act (Taft-Hartley Act), is the federal
agency 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 NLRB's 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 Board's rule-making authority.
This ruling is regarded as a significant victory in support
of the workplace rights of nurses.
Organizing
a Union
It would be extremely difficult for one person to organize
an entire hospital 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 per-sonnel. 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.
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.
Recognition
An employer's formal recognition or NLRB certification of
a representative of the majority of the unit is necessary
before the process of negotiating a bar-gaining 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.
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 Board's official Notice of
Election will be posted at the employer's 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.
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, inservice
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.
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 classi-fied: 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.
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 other's 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.
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.
Grievance Handling
Nurses
and Collective Bargaining: 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." |
From the individual nurse's 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 employee's 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
6/19/07
