Collective Bargaining: Traditional (Union) and Nontraditional Approaches

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Is there a place for collective bargaining in nursing?
After completing this chapter, you should be able to:
• Identify the milestones in the history of collective bargaining.
• Compare traditional and nontraditional collective bargaining.
• Identify examples that indicate an employer’s position on the role of professional nurses as it impacts practice.
• Identify conditions that may lead nurses to seek traditional or nontraditional collective bargaining.
• Identify the positive and negative aspects of traditional and nontraditional collective bargaining.
• Discuss the benefits of collective bargaining for professional groups.
• Discuss the impact of the silence of nurses in public communications and the public’s perception of nurses.
• Identify barriers to the control of professional practice.
You will soon be accepting your first position as a registered nurse (RN). You will be adjusting not only to a new role but also to a new workplace. Even in these times of dramatic change in health care, many of you will start your career in a hospital. In fact, the demographics about nurses show that
▪ Approximately 61% of nurses in practice are providing care in hospitals (Bureau of Labor Statistics, 2016). Additionally, registered nurses are providing direct patient care in settings such as outpatient care settings, private practice, health maintenance organizations, primary care clinics, home health care, nursing homes, hospices, nursing centers, insurance and managed care companies, etc. (Potter, Perry, Stockert, & Hall, 2013; Bureau of Labor Statistics, 2016) in which care that was hospital-based in the past is now provided in these alternative settings.
▪ The hospital is also the most common employer of graduate nurses in their first year of practice; more than 72% of new graduates were working in a hospital in their first year of employment (NCSBN, 2015).
▪ Employment of registered nurses is projected to grow 16% from 2014 to 2024, faster than the average for all occupations. Growth will occur for a number of reasons, including an increased emphasis on preventative care; growing rates of chronic conditions, such as diabetes and obesity; and demand for health care services from the Baby Boomer population, as they live longer and more active lives (Bureau of Labor Statistics, 2016).
As you begin to interview for your first position in your career as a professional RN, there is no doubt you will find yourself both excited and anxious. Your prospective employer will assess your ability to think critically and to perform at a professional level in the health care setting. The potential employer will ask, “Is this applicant a person who will be able to contribute to the mission of the organization and to the quality of health care offered at this organization?”
While the employer assesses your potential to make a contribution, it is equally important that you remember that an interview is a complex two-way process. You will, of course, be eager to know about compensation, benefits, hours, and responsibilities. These are very tangible and immediate interests. However, these are not likely to be the best predictors of satisfaction with your practice over time, as the ability to practice your profession as defined by licensure and education will be the foundation leading to job satisfaction and professional fulfillment.
You should be prepared to assess the potential employer’s mission and ability to support your professional practice and growth. It is extremely important that you gain essential information about the organization, its mission, and its culture. It is easy to overlook very significant organizational issues that will ultimately affect your everyday practice of nursing when your primary focus is on becoming employed and on wondering whether you will succeed in this first professional role. Thomas (2014) identifies several questions to keep in mind: What is the management style of the company? How is patient satisfaction measured here, and what are the most recent findings? What would you say are the top two to three qualities of the most successful nurses currently working here? Additionally, it is important to use the 2015 Code of Ethics for nursing to guide your questions about the role of the staff registered nurse in decision making related to the practice of nursing in the facility. “Making decisions based on a sound foundation of ethics is an essential part of nursing practice in all specialties and settings…” (American Nurses Association, 2015a).
Hospital structures and governance policies can have a dramatic influence on the effectiveness of a registered nurse and how he or she can fulfill obligations to patients and families. Registered nurses have defined the discipline of nursing as a profession, and, as members of this profession, they must have a voice in and control over the practice of nursing. When that voice and control are not supported in the work setting, conflicts most likely will arise. In some states, nurses have made a choice to gain that voice and assume control of their practice by using a traditional collective bargaining model, commonly known as a labor union. In other states, particularly those that function under the right-to-work regulations, nurses attempt to control practice through interest-based bargaining (IBB), which is a nontraditional approach to collective bargaining that is used to accomplish the provision of a voice and control over practice (Budd et al., 2004) (Box 18.1). In some states nurses use both models to meet the needs of their diverse membership.

 
BOX 18.1Terms

Traditional collective bargaining—A legally regulated collective bargaining unit or a union that assists members to gain control over practice, economics in the health care industry, and other health care issues that threaten the quality of patient care.
National Nurses United (NNU)—The new RN SuperUnion formalized in December 2009.
Nontraditional collective bargaining—Shared governance, or interest-based bargaining (IBB); a collaborative-based, problem-solving approach to assist nurses to have a voice in the workplace and control over issues that affect their practice.
Center for American Nurses (CAN)—Organization that previously represented the interests of nurses who were not formally represented by a collective bargaining unit or union (Budd et al., 2004). It is now an integral part of the ANA.

When did the Issues Leading to Collective Bargaining Begin?

Since World War II, there have been phenomenal advances in medical research and the subsequent development of life-saving drugs and technologies. The introduction of Medicare and Medicaid programs in 1965 provided the driving force and the continued resources for this growth. This initiative opened access to health care for millions of Americans who were previously disenfranchised from the health care system.
The explosion in knowledge and technology, coupled with an expanded population able to access health care quickly, increased the demands on the health care system and many of the providers in that system. These advances required nursing to adapt as the complexity of health care and the number of patients accessing this care continued to increase. For example, at the time when the acuity of hospitalized patients increased because of shorter lengths of stay, organizations were responding to cost containment demands by downsizing the number of staff members. As more patients had access to all services in the health care system, the number of care hours available for each patient decreased, because fewer staff per patient were being hired. Overall, patients were sicker when they entered the system. Yet they were moved more quickly through the acute care setting because of such innovations as same-day admissions, same-day surgery, increased discharge to long-term care settings and early discharge. Add to these changes the periodic shortages of nurses prepared for all levels of care, the increased use of unlicensed assistive personnel to provide defined, delegated nursing care, and growing financial pressures on the health care system, and tensions became understandably high.
The time between 2000 and 2013 also brought pressures on registered nurses, as the safety of hospitalization became a paramount concern among both patients and health care staff. The publication To Err Is Human (Institute of Medicine, 2000, p. 31) stated that “Based on the results of the New York Study, the number of deaths due to medical error may be as high as 98,000 [yearly].” With registered nurses being at the bedside of acute care patients, their involvement in identifying and/or committing medical errors is high. Ensuring this staff has the appropriate resources to provide safe care is an issue that registered nurses need to address directly with the management of the facility and/or the collective bargaining agent for that hospital/organization. Enormous financial challenges confront health care institutions. As a registered nurse working in the health care industry, you will encounter and use newly developed and very costly health care technologies. At the same time, you will experience, firsthand, the impact of public and private forces that are focused on placing restraints on cost and reimbursement for a patient’s care.
Adding to these concerns regarding safe care, new technologies, and potential staff shortages was the implementation of the Patient Protection and Affordable Care Act (PPACA) of 2010 (commonly referred to as the Affordable Care Act [ACA] or Obamacare) (U.S. Department of Health & Human Services, 2016). A significant aspect of this act is the fact that it created the requirement for almost every person in this country to be covered by some form of health care insurance, thereby increasing the numbers of people who could/would present for care from the various health care facilities.
As a professional RN, you are at the intersection of these potentially conflicting forces. For you, these forces will be less abstract; they are not just important concepts and issues facing a very large industry. As a nurse, these concepts and forces are patients with names, faces, and lives valued and loved within a family and a community. You are responsible for the care you provide and for advocating on behalf of these patients and—as you will soon discover—the health of the health care industry.
As a registered nurse, you will become familiar with how, when, and why events occur that adversely or positively affect the patient and the health of the organization. This places you in a unique position to take an active lead in developing solutions. These solutions must be good for patients and for your organization. During your interview for potential employment, while you are busy assessing the potential employer’s mission and support of your practice and growth, it is easy to overlook those significant organizational attributes that will ultimately affect your everyday practice of nursing. Therefore, during your interview it would be important for you to ask those questions identified in the beginning of this chapter, particularly those that address the ethical practice of registered nurses.

The Evolution of Collective Bargaining in Nursing

In the early 1940s, 75% of all hospital-employed registered nurses worked 50 to 60 hours a week and were subject to arbitrary schedules, uncompensated overtime, no health or pension benefits, and no sick days or personal time (Meier, 2000). In 1946, the American Nurses Association (ANA) House of Delegates unanimously approved a resolution that formally initiated the journey of RNs down the road of collective bargaining. During the period between this resolution and 1999, the constituent organizations of ANA (state associations) were determined to be collective bargaining units for registered nurse members who desired this representation in the workplace. Not all states provided collective bargaining services, so the debate over the acceptance of collective bargaining as appropriate for nurses became a divisive issue in the ANA for decades.

Legal Precedents for State Nursing Associations as Collective Bargaining Agents

The legal precedent that determined that state nursing associations are qualified under labor law to act as labor organizations is the 1979 Sierra Vista decision. The important consequence of this decision that affected nurses was that they were free to organize themselves and not to be organized by existing unions (Kimmel, 2007). Many registered nurse leaders contend that these associations are not only proper and legal but are the preferred representatives for nurses in this country for purposes of collective bargaining. Ada Jacox (1980) suggested that collective bargaining through the professional organization was a way for registered nurses to achieve that collective professional responsibility that is a characteristic of a profession. It was thought by many that the state nursing association was the only safe ground that could be considered as neutral turf on which registered nurses from all educational backgrounds could meet and discuss issues of a generic nature and of importance to all registered nurses. However, as discussed in the section on the history of collective bargaining, it is beginning to appear that the preferred platform for meaningful collective bargaining for the profession is through a structure, such as the National Nurses United (NNU).
Many formally organized unions outside of the ANA have competed for the right to represent nurses. It was the opinion of many nurses that the state nurses associations were the proper and legal bargaining agents and were also the preferred representatives for nurses in this country for purposes of collective bargaining. During the late 1980s, the demand among nurses for representation continued to grow; yet efforts to organize nurses for collective bargaining were being stymied by a decision from the National Labor Relations Board (NLRB) that stopped approving the all-RN bargaining units. A legal battle then ensued, with the ANA and other labor unions against the American Hospital Association (AHA). The NLRB issued a ruling that reaffirmed the right of nurses to be represented in all-RN bargaining units.
Seeking a broader base of representation and greater support from the ANA for the collective bargaining program led activist nurses within the ANA to establish the United American Nurses (UAN) in 1999. They believed in the creation of a powerful, national, independent, and unified voice for union nurses. In 2000, the UAN held its first National Labor Assembly annual meeting. The participants in this meeting were staff nurse delegates. In February 2009, the UAN, the California Nurses Association, and the Massachusetts Nurses Association joined forces to form one new union that claims to represent 185,000 members. The new union, called the United American Nurses–National Nurses Organizing Committee, would become a part of the labor movement as an AFL-CIO affiliate union. Shortly after this move, the union was renamed the National Nurses United (NNU) (NNU, 2016).
As has been demonstrated, the representation of registered nurses for collective bargaining continues to change and grow to the point where affiliation with the ANA primarily for this purpose is no longer evident. Collective bargaining outside of ANA has become the route for registered nurses to gain the recognition many believe is essential for the growth of the profession. Others see this as the least effective way to gain recognition and benefits afforded to members of a profession.
Collective bargaining for professional groups (physicians, teachers, professors, scientists, entertainers, pilots, administrators) offers registered nurses another perspective regarding the process of collective bargaining. Identification with these professional groups can certainly help the nursing profession become accepted as a true profession with all the benefits of that identification.
Some of the differences noted between traditional collective bargaining and collective bargaining for professionals are agreeing to take lower wages in exchange for greater fringe benefits, setting a wage floor and then allowing individuals to negotiate for a salary based on individual performance and/or negotiating for merit pay for outstanding performance (DPE Research, 2015). The opportunity to develop a variety of ways to earn wages begins the recognition that, even when bargaining collectively, there are opportunities to be compensated for significant differences in performance.
Collective bargaining for professionals also offers the opportunity to designate how a proposed increase in wages can be used to address other issues that might exist within the professional group. “Registered nurses at a hospital in Michigan turned down a 3% pay raise in favor of a 2% raise and the hiring of 25 additional nurses in an effort to offer better, more professional patient care” (DPE Research, 2015, p. 5).

Who Represents Nurses for Collective Bargaining?

Traditional and Nontraditional Collective Bargaining

The national professional organization for nursing is the ANA, with its constituent units, the state, and territorial nursing associations. Through its economic security programs, the ANA recognized state nursing associations as the logical bargaining agents for professional nurses, and the states have been the premier representatives for nurses since 1946! These professional associations are indeed multipurpose; their activities include economic analyses, provision of related education, addressing nursing practice, conducting needed research, and providing traditional as well as nontraditional collective bargaining, lobbying, and political action.
The creation of the UAN by the ANA strengthened their collective bargaining capacity at a time when competition to represent nurses for collective bargaining was growing. The UAN was established in 1999 as the union arm of the ANA with the responsibility of representing the traditional collective bargaining needs of nurses. At the same time, a relatively new approach to collective bargaining was being developed and introduced into the labor market. This approach is a nontraditional process referred to as interest-based bargaining (IBB) or shared governance (Brommer et al., 2003; Budd et al., 2004). This is a nontraditional style of bargaining that attempts to solve problems and differences between labor and management. Although this style of bargaining and mediation will not always eliminate the need for the more traditional and adversarial collective bargaining, many believe this nonadversarial approach to negotiation may be closer to the basic fabric of the discipline of nursing and its ethical code.
The organization that represented IBB, or the nontraditional collective voice in nursing, was the Center for American Nurses (Center). This was a professional association established in 2003, replacing the ANA’s Commission on Workplace Advocacy that was created in 2000 to represent the needs of individual nurses in the workplace who were not represented by collective bargaining. The Center defined its role in workplace advocacy as providing a multitude of services designed to address the products and programs necessary to support the professional nurse in negotiating and dealing with the challenges of the workplace and in enhancing the quality of patient care (The American Nurse, 2010) (Critical Thinking Box 18.1).

 
icon CRITICAL THINKING BOX 18.1
What is the status of your state nursing association in regard to workplace issues? Is your state a member of the NNU? What is being done on a local basis that reflects the activities of your state association related to registered nurses’ control over their practice?
In 2007, the American Nurses Association informed the UAN and CAN that they would not be renewing their affiliation agreement (Hackman, 2008). Following this, in 2009, the largest union and professional organization of registered nurses was officially formalized. This organization is the National Nurses United (NNU), and it is an outgrowth of the merger of three individual organizations—the California Nurses Association, the Massachusetts Nursing Association, and the United American Nurses (the former UAN) (Gaus, 2009). This NNU union includes an estimated 185,000 members in every state and is the largest union and professional association of registered nurses in U.S. history (NNU, 2016).
In 2013, what remained of the Center was integrated into the structure of ANA and is now a part of the “products and services …and valuable resources that will directly assist nurses in their lives and careers” (The American Nurse, 2010, para 2).
 
Whether your state is a member of ANA or NNU, or both, it is necessary to recognize that workplace advocacy is a concern that directly affects every practicing nurse. It is critical that nurses support the organizational efforts to address the growing problems regarding the safety of the workplace, as well as safe and competent patient care, managed by registered nurses.

ANA and NNU: What Are the Common Issues?

Staffing Issues

Staffing issues and policies related to nurse staffing are among the most prevalent topics discussed in any type of negotiation. There is much discussion in both the national and state legislatures regarding proposals aimed at addressing the way in which registered nurses should be staffed to be able to provide safe, as well as quality, patient care. There is also much objection to implementing mandated staffing plans rather than allowing nurses to maintain control over issues related to their professional practice. The Institute of Medicine (2004) completed a study entitled Keeping Patients Safe: Transforming the Work Environment of Nurses. The results of the study have led to significant recommendations that, if implemented, would begin to address the chronic shortage of registered nurse staff without resorting to mandatory regulations from the legislatures.
Staffing requirements are already mandated by various agencies. For example, Medicare, state health department licensing requirements, and The Joint Commission (TJC) each publish staffing standards that define the need to have sufficient, competent staff for safe and quality care. The ANA has launched a campaign for safe staffing: Safe Staffing Saves Lives, which encourages the establishment of safe staffing plans through legislation (Trossman, 2008). In 2015, the Registered Nurse Safe Staffing Act was introduced to Congress. If passed, Medicare participating hospitals would be required to develop safe staffing plans for each unit in the hospital. The staffing committee would be comprised of registered nurses working in direct patient care (American Nurses Association, 2015b). However, this legislation will need the factors that define safe, quality staffing as the basis for this legislation. It is also clear that staffing is more than numbers and any legislation or policy must include the fact that the registered nurses must demonstrate the competencies for the processes that are needed to provide safe care and to ensure the safety of patients. Please refer to Chapters 17 and 25 for further discussion regarding staffing issues.

Objection to an Assignment

Professional duty implies an obligation to decline an assignment that one is not competent to complete. RNs cannot abandon their assigned patients, but they are obligated to inform their supervisor of any limitations they have in completing an assignment (Fig. 18.1). Not to inform and not to complete the assignment, or not to inform and to attempt to complete the assignment, risks untoward patient outcomes and resultant disciplinary action up to and including some potential action taken by the board of nursing.
The right and the means for a nurse to register an objection to a work assignment are considered essential elements in a union contract that incorporates the values of a profession as the basis of the contract agreement. This same process must be provided to nurses not represented by a union because nurses are obligated to only provide the care that they are competent to provide. While they are participating in the interview process, registered nurses should ascertain the presence of a written policy regarding objections to an assignment.
Nurses are encouraged to submit reports indicating an objection to the assignment when the assignment is not appropriate. The report should follow the process defined in the contract or facility policy. These same problems should also initiate constructive follow-through by management or staff-management committees to improve the situations described in the reports. Inaction could serve as a basis for a grievance or negotiated change in a union contract or an incident or change in policy in a nonunion environment.

Concept of Shared Governance

Many facilities are implementing a variety of governance models called shared governance, self-governance, participative decision making, or decentralization of management. In its simplest form, shared governance is shared decision making based on the principles of partnership, equity, accountability, and ownership at the point of service (Swihart, 2006). The purpose of shared governance is to involve nurses in decision making related to control of their practice while the organization maintains the authority over traditional management decisions. The concept of shared governance can be a concern to unions representing nurses for purposes of collective bargaining since collective bargaining is also thought to be a governance model that decentralizes aspects of management.
image

FIG. 18.1 Declining an assignment.
In general, shared governance focuses on clinical practice aspects of the registered nurse staff while collective bargaining has a major focus on work rules/policies, and so forth. While the lines separating practice from work rules is minimal at times, it can be defined by those who are truly interested in achieving outcomes that are best for all parties. The discussion and understanding that must be reached address who or what controls the practice of professional nursing.
The concept of shared governance can be a concern to registered nurses who may feel that participating in shared governance can be a disadvantage to the practicing nurse if this participation is considered an alternative to collective bargaining. Whether greater latitude in decision making could be achieved through collective bargaining is the question to be considered. However, as more facilities are moving toward Magnet certification in which shared governance is a major function, it is recognized that some unionized facilities are also embracing the concepts of Magnet as recognition of the professional aspect of bargaining when representing the profession of nursing. Either way, it is essential that the practice of nursing be defined by nursing and the structure for implementing this practice is in place in each organization where nursing care is delivered.

Clinical or Career Ladder

The clinical ladder, or career ladder, has a place in both traditional and nontraditional styles of collective bargaining (Drenkard & Swartwout, 2005). The clinical ladder was designed to provide recognition of a registered nurse who chooses to remain clinically oriented. The idea of rewarding the clinical nurse with pay and status along a specific track or ladder is the result of the contributions of a nurse researcher, Dr. Patricia Benner. Her descriptions of the growth and development of nursing knowledge and practice provided the basis for a ladder model that can be used to identify and reward the nurse along the steps from novice to expert (Benner, 2009).

Negotiations

While registered nurses in a facility have varied educational backgrounds and represent the multiple practice specialties available to nursing, there are common practice issues/processes that need to be addressed by the nursing negotiating team. Once the common issues are addressed, the differences in practice needs must then be addressed in ongoing negotiations.
Professional goals and practice needs are appropriate topics for contract negotiations. Because personnel directors, hospital administrators, and hospital lawyers may have difficulty relating to these discussions, the nurse negotiating team has to be able to provide sufficient information to help prepare these individuals to understand the inclusion of professional goals and practice needs into the collective bargaining process and as entries into the agreed-on contract. The resolution of disagreements about professional issues necessitates there be time for a thoughtful process by those who are appropriately prepared to reach agreements through the negotiating process. Perhaps the complex issues such as recruitment, retention, staffing, and health and safety are better addressed in the more collegial setting of the nontraditional model; however, many of these issues are paramount to the creation of a safe and effective work environment for nurses, and they need to be addressed in both types of negotiations (Institute of Medicine, 2004).
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