Joann Wilcox, RN, MSN, LNC
Collective Bargaining
Traditional (Union) and Nontraditional Approaches
It is time for a new generation of leadership to cope with new problems and new opportunities. For there is a new world to be won.
—JOHN F. KENNEDY
Difficulties are meant to rouse, not discourage. The human spirit is to grow strong by conflict.
—WILLIAM ELLERY CHANNING
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 the positive and negative aspects of traditional and nontraditional collective bargaining.
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:
The hospital is also the most common employer of graduate nurses in their first year of practice; more than 85% of new graduates were working in a hospital in their first year of employment (Wendt & O’Neill, 2006).
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 in wondering if you will succeed in this first professional role. Williams (2004) identifies these questions to keep in mind: Who does the potential employer include in developing solutions and making decisions in the dynamic environment of health care and how are selections made for this activity? How will you voice your expertise and the challenges you repeatedly encounter? Will your ideas for process improvement be encouraged?
Hospital structures and governance policies can have a dramatic influence on the effectiveness of a registered nurse and how he or she can fulfill their obligation to patients and families. 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 by 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. Other states (Center for American Nurses [CAN], 2008) have elected to control practice through interest-based bargaining (IBB) or a nontraditional approach to collective bargaining to accomplish having that voice and control over practice (Budd et al, 2004) (Box 18-1). Some states use both models to meet the needs of the diverse membership.
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 have required nursing to adapt as the complexity and volume of patients accessing health care continue to increase. For example, at the time when the acuity of hospitalized patients increased due to shorter lengths of stay, organizations were responding to cost containment demands by downsizing numbers of staff. As more patients have access to all services in the health care system, the number of care hours available for each patient has declined because fewer staff per patient are being hired. Overall, patients are sicker when they enter the system. Yet they are moved more quickly through the acute care setting because of such innovations as same-day surgery, same-day admissions, 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 system, and tensions are understandably high.
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, first-hand, the impact of public and private forces that are focused on placing restraints on cost and reimbursement for a patient’s care.
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 these patients’ behalf and—as you will soon discover—the health of the health care industry.
As a 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, while you are 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.
The Evolution of Collective Bargaining in Nursing
In the early 1940s, most registered nurses working in hospitals were subject to arbitrary schedules, uncompensated overtime, no health or pension benefits, and no sick days or personal time. During this era, 75% of all hospital-employed nurses worked 50 to 60 hours a week meeting these arbitrary schedules and uncompensated overtime (Meier, 2000).
In 1946 the American Nurses Association House of Delegates unanimously approved a resolution that formally initiated the journey of RNs down the road of collective bargaining. Activist nurses within the American Nurses Association (ANA) founded the United American Nurse (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 (UAN, 2008).
Many formally organized unions have competed for the right to represent nurses. It was the opinion of many nurses supporting this precedent 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 all-RN bargaining units. A legal battle then ensued with the American Nurses Association (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.
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 recognizes 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 (UAN, 2008). At this 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 problem-solve 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 non-adversarial approach of negotiation may be closer to the basic fabric of the discipline of nursing and its ethical code.
The organization that represents IBB, or the nontraditional collective voice in nursing, is the Center for American Nurses (CAN). This is a professional association established in 2003, replacing the ANA’s Commission on Workplace Advocacy, which was created in 2000 to represent the needs of individual nurses in the workplace who were not represented by collective bargaining. CAN defines 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 (Critical Thinking Box 18-1, Box 18-2) (CAN, 2008).
In June 2008, the American Nurses Association Board of Directors voted to “not renew either affiliation agreement with the UAN and the CAN and proposed significant bylaw changes to be debated at the June House of Delegates” (Nursing World, 2008, p. 3). The changes to the bylaws were approved by the delegates. The rationale for these changes was to “strengthen and provide additional choices for our state nursing associations” (Nursing World, 2008, p 3).
In 2009, the largest union and professional organization of registered nurses was officially formalized. This organization is the National Nurses United (NNU) and is an outgrowth of the joining of three individual organizations-the California Nurses Association, the Massachusetts Nursing Association, and the United American Nurses (the former UAN) (Nations, 2009). The Michigan state association joined the NNU in early 2010 and there are 27 states, which have an affiliation agreement with NNU (National Nurses United, 2010). This union (NNU) has 150,000 members and is only a few months old (Michigan Nurse, 2010).
In 2010, the CAN exists as an independent organization, following the original mission of the organization while continuing to have a relationship with ANA as both are focused on addressing the issues that impact the profession of nursing and the health of the population served.
CAN 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 negotiations. There is much discussion in both the national and state legislatures regarding proposals aimed at addressing the way in which nurses should be staffed to be able to provide safe patient care. There is also much objection to implementing mandated staffing plans rather than allowing nurses control over issues related to their professional practice. Because of the commonalities related to the topic of staffing, it would be helpful if all nurses supported the right to define the appropriate work environment in which RNs could practice safely and effectively. 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 sufficient RN 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. All organizations that address staffing indicate that the nurse must demonstrate competencies for the processes that are needed to ensure the safety of the patients. The ANA has launched a campaign for safe staffing: Safe Staffing Saves Lives. The ANA encourages nurses to establish safe staffing plans through legislation (Trossman, 2008). Please refer to Chapters 17 and 25 for further discussion regarding staffing issues.
Objection to an Assignment.
Professional duty implies an obligation to not accept an assignment for which one is not competent to complete. RNs cannot abandon their assigned patients but are obligated to inform their supervisor of any limitations they have in completing that assignment. To not inform and not complete the assignment or to not inform and 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 means for a nurse to register 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 since nurses are obligated to only provide care, which they are competent to provide. Also, this is one way that issues can be brought to the attention of those in a decision making capacity. 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. Each of these models describe a system in which nurses have a defined degree of organizational autonomy as it relates to control over practice (Hinshaw, 2002). The concept of shared governance can be a concern to unions representing nurses for purposes of collective bargaining. It is important to ensure that staff nurses who participate in shared governance are not ultimately seen to be performing management functions.
Shared-governance models do not hide the fact that their purpose is to involve nurses in decision making related to control of their practice while the organization maintains the authority over the traditional management decisions. Although this does not violate the principles of participation in aspects of decision making, it can be considered a disadvantage to nurses employed by institutions if shared-governance models are adopted in lieu of collective bargaining agreements and if it is believed there would be greater latitude in shared decision making in a union environment. However, as more facilities are moving toward Magnet certification in which shared governance is a major function, it is recognized that some facilities that are unionized are also embracing the concepts of Magnet as a recognition of the professional aspect of bargaining and representing the profession of nursing.
Clinical or Career Ladder.
The clinical ladder, or career ladder, has a place in both traditional and nontraditional styles of collective bargaining (Drenkard & Swartout, 2005). The clinical ladder was designed to provide recognition of a registered nurse who chooses to remain clinically oriented. The idea to reward 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 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). Force 14 of the Forces of Magnetism, required for a facility to achieve Magnet certification, discusses the use of clinical ladders as a part of the professional development program for RNs (HCPro, 2006). Continued professional growth is an essential element identified in Magnet facilities.
Negotiations.
Nurse negotiators represent a diverse population of constituents since nurses in a facility have varied educational backgrounds and represent the multiple practice specialties available to nursing. This variety leads to differences in practice needs, which must be addressed by the nursing negotiating team.
Professional goals and practice needs are appropriate topics for contract negotiations. Since 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-upon 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 need to be addressed in both types of negotiation (Institute of Medicine, 2004).
The Debate Over Collective Bargaining
Collective Bargaining: Perspectives of the Traditional Approach
Is There a Place for Collective Bargaining in Nursing?
Should nurses use collective bargaining if they are members of a profession? Is nursing a profession or an occupation? These are questions nursing has debated since the late 1950s, and the discussion and debate continues today. Nursing often looks for assistance outside of the occupation/profession to help resolve issues, but these two questions can and should be resolved by nursing if there is the desire to be recognized as independent and in control of our practice.
A profession can be defined as a vocation that requires a long period of specialized educational, to prepare one for service to society (Blais et al, 2002). This specialized education is one that is generally a part of a baccalaureate program as is the minimum required for most professions. Because of their expertise and the value of their service, members of a profession are granted a measure of autonomy in their work. This autonomy permits practitioners to make independent judgments and decisions on the basis of a theoretical framework that is learned through study and practice. While there may still be some who do not agree with the need for baccalaureate education to be designated as a profession, consideration needs to be given to the fact that not being designated as a profession continues to keep nurses from reaching the potential of their contributions to patients and the health care system. In each state, registered nursing is categorized as an occupation by the respective labor boards and many decisions regarding the position of nursing in an organization are based on this definition as an occupation. For purposes of the discussion on traditional and nontraditional collective bargaining, the role of nursing will be addressed as that of a profession.
Conflict arises as nurse-employees advocate for a professional role in patient care when they are not classified as a profession by labor definitions and by the hiring facilities. The health care institutions hire nurses as members of an occupation who are essentially managed and led by the organization’s formal leaders who often focus on productivity and savings. This is believed to be a factor leading nurses to consider unionization as the only way they can gain some control over their practice.
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