- Email: [email protected]
Labor relations act: implications for nurses
Labor relations act: implications for nurses Mary
D Munger, RN, MS
This topic, “Labor Relations Act and its implications for nurses,” deserves top billing on the nursing profession’s agenda and is currently receiving priority attention within the American Nurses’ Association (ANA) . Wherever nurses meet during this next year, there will be discussion about the National Labor Relations Act (Taft-Hartley Act) and ANA’s economic and general welfare program. This AORN Congress coincides with the recent decision of ANA to “organize the nation’s 800,000 active registered nurses for the purpose of professional collective action.” At a special press conference in November, ANA’s President Rosamond Gabrielson announced ANA’s intention to “mobilize the single largest group of health professionals to achieve the highest possible quality of care for all Americans.” Subsequently, at a February meeting, the ANA Board of Directors approved plans submitted by its Commission on Economic and General Welfare to expand the program and authorized funding up to
AORN Journal, M a y 1974, Vol 19, N o 5
Mary Munger, RN, MS, is nursing consultant, Montana State Department of Health and Environmental Sciences, Helena, Mont. She delivered this speech a t the closing.session of the 1974 AORN Congress. Ms Munger is a graduate of St James Hospital School of Nursing, Butte, Mont; Montana State University, Bozeman; a n d the University of California at San Francisco. She i s a member of the American Nurses‘ Association Commission an Economic and General Welfare.
1127
T
...
he average staff nurse is required to respond to without having any decisions input into the decision making process
...
$750,000 for implementation. The expansion of the ANA program which deals with the employment interests of nurses will have a greater impact nationwide if Congress extends the coverage of the National Labor Relations Act to all nonprofit hosiptals in this country. The Taft-Hartley Act1 is the federal law which regulates employer-employee relationships in all business engaged in interstate commerce. The purpose of the Taft-Hartley Act is to define and protect the rights of employers and employees; to encourage collective bargaining; and to eliminate certain practices on the part of labor and management that are harmful to the general welfare. The law is administered and enforced principally by the National Labor Relations Board (NLRB) and the General Counsel acting through 42 regional and other field offices located in major cities. The General Counsel and his staff in the regional offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the regional offices. At present, nonprofit hospitals are
1128
exempt from the provisions of the Taft-Hartley and have been since 1947 when the Taft-Hartley replaced the Wagner Act. During debate, Sen Joseph Tydings from Maryland SUCcessfully submitted an amendment to the Taft-Hartley bill which blocked testimony from opposing groups, including ANA. Tydings argued that nonprofit hospitals were not engaged in interstate commerce; that hospitals were charitable institutions maintained almost entirely by donations: and do not derive a bit of profit.2 Why was this change in the federal labor relations law so important to the nursing profession? In 1946 the ANA House of Delegates formally adopted its economic and general welfare program which recognized collective bargaining as one of the most effective means of involving nurses in the decision making progress at their respective places of employment. Now the organization was faced with a federal law which appeared to prohibit collective bargaining for the majority of its membership who worked in hospitals since most hospitals in this country have a nonprofit tax status. As predicted by William Scott, former legal counsel for ANA, the nonprofit hospital exemption in the Taft-Hartley has proven to be a “long shadow”3 over
AORN Journal, May 1974, Vol 19, N o 5
the nursing profession’s effort toward self-determination in employment matters. Hospital management refused to recognize the rights of nurses to organize and bargain. Moreover, the Taft-Hartley law became a pattern for state legislation, and the nonprofit hospital exemption has been cited often by state courts as a declaration of desirable public policy in interpreting state laws which did not specifically include or exclude nonprofit hospitals. The above reasons are probably sufficient in explaining continued effort to amend the Taft-Hartley, but one must also examine the experience of state nurses’ associations as they attempt to develop economic and general welfare programs. Since 1946 concern about nursing practice and protecting the prerogative of the profession to set standards for practice has been the basis for urging state nurses’ associations to represent nurses in collective bargaining. In spite of barriers presented by management’s interpretation of the TaftHartley limitations, several state nurses’ associations developed effective economic and general welfare programs. They are prepared to represent nurses in bargaining with employers. State nurses’ associations have also influenced changes in state laws to assure bargaining rights for nurses. As of January 1974, there were 475 employment contracts negotiated by 33 state nurses’ associations covering more than 65,000 nurses. Significantly, 381 of the contracts were negotiated in the 11states which have protective labor laws. This indicates that with protection of a law nurses are more willing to act collectively. Through the aggressive economic
1130
and general welfare programs of state nurses’ associations, assisted and guided by ANA, the economic status of the entire nursing profession has improved markedly. However, efforts of nurses’ associations to achieve the greater purpose of the program-the improvement of nursing care for patients is not as easy to document. A few states have been successful, despite great resistance from employers, in obtaining contract provisions directly related t o nursing practice. In far too many instances, however, decisions about staffing patterns, utilization of professional nursing skills, the quality and quantity of nursing care given, etc, do not involve the nurse who are expected t o give the care. The average staff nurse in this country is required to respond to decisions made a t a higher level without having input into the decision making process. The present ANA Commission on Economic and General Welfare is convinced that nurses must develop mechanisms within their employment settings for the implementation of nursing standards. This goal can be realized through the established procedures of collective bargaining. The commission does not view the extension of the Taft-Hartley law as a panacea, but as a tool which can be used by ANA and its state constituents in organizing nurses, particularly in the 34 states without protection under state law for collective bargaining. ANA has worked for the removal of the nonprofit hospital exemption ever since it was added to the TaftHartley. ANA’s involvement with the Taft-Hartley can be correlated to the overall growth and sophistication of ANA’s legislation program. Julia Thompson, in her history of ANA in
AORN Journal, May 1974, Vol 19, N o 5
Washington,’ notes that one of the first efforts made in labor legislation after the ANA Washington office opened in 1951 was an attempt to have the exemption portion, Section 2 (21, removed from the Taft-Hartley. Many of you can well imagine the reaction of Congress to this neophyte effort of a “woman’s organization.” Miss Thompson soon learned that neither labor nor management wanted the law opened for fear each would lose some protection provided under the law. The only thing that happened between 1951 and 1971 was a hearing by both the House and Senate committees in 1953 when a bill to secure the amendment was introduced. It never got out of the committee. Shirley Titus of California testified for ANA in favor of the amendment. In 1971-1972 the bill to amend the TaftHartley received extensive hearings by both the House and Senate and almost made it through only to get caught in a time bind in the Senate. There is still a great deal of hope for H R 1236 in this 1974 session of Congress. If passed, it will lift the “long shadow” for all employees of nonprofit hospitals. ANA Commission members have testified in support of including nonprofit hospitals under the TaftHartley a t the four Congressional committee hearings held during the past two years. Retention of the section which gives professionals the right to a bargaining unit of their own has been stressed, and commissioners have requested a change in Section 2(11) which presently defines a supervisor in a way that it might exclude many nurses who hold the title of super-
1132
visor but who are not in managerial positions. The report of the House special subcommittee on labor to the full committee dated July 27, 1972 indicates someone is hearing ANA’s concern. “The ANA urged that industrial concepts of ‘supervisor’ not be carried over into the hospital industry, possibly leading to the exclusion of head nurses or charge nurses from bargaining units. These nurses are presently included in bargaining units in some states. Your committee’s intent in extending NLRA coverage to nonprofit hospitals is that nurses, as well as all other hospital employees, enjoy the rights guaranteed to other employees covered by the act, and it is your committee’s view that nurses with only nominal supervisory duties should not be considered as ‘supervisor’ within the meaning of the Act.” The nursing profession has been called a sleeping giant. It has been stretching its muscles in the past few years and now other forces are at work to waken its spirit more fully. A federal law encouraging the use of collective bargaining in nonprofit hospitals, combined with an accelerated thrust from ANA to help nurses organize to implement the profession’s standards of practice, should be a winning combination for dramatically improving the quality and quantity of nursing care in this country. FOOTNOTES
I . National Labor Relations Board, A Layman’s Guide To Basic Law Under The National Labor Relations Act. 2. W Scott, D Smith and E Porter, “The Long Shadow,” American J0urna.l of Nursing, 3 (1966)
538-543. 3. Ibid. 4. J Thompson, “ANA In Washington,“ American Nurses‘ Associafion, 1972.
AORN Journal, May 1974, Vol 19, N o 5
Q
iaestions from the audience &the closing session
Q
I think collective bargaining will be
an asset to the professional nursing organization. My only concern is for the patients if there i s a strike. Who will take care of patients especially on emergency services such a s ER and OR?
A
This is a timely question and a concern of all of ours. In the experience of nurses who have been involved in strikes, arrangements have been made in advance with management about the care of patients. There i s no evidence that where a strike has occurred patients have been neglected. It i s possible for elective surgeries to be rescheduled. Nurses have been willing to come in for emergencies. They have not denied nursing care to patients. From information the ANA Commission has reviewed, we have no evidence that nurses would neglect patients. I would also point out that we are not advocating strike. W e believe that if nurses can sit down with employers and can discuss in a reasonable way the issues thot concern everybody in this country as far as health care, we will avoid these kinds of disputes.
Q
What i s A N A doing to remove the 5.5% restriction on health care facili-
ties?
A
We have been extremely concerned about the limitations placed on health care facilities and on all health care workers b y President Nixon’s stabilization program. I can report to you that ANA, a t the direction of our Commission, has responded
1134
to every memo from the Cost of Living Council during Phase 1, Phase 2, Phase 3, Phase 3%, and now Phase 4. W e point out with as much influence as we can muster that this is too restrictive. This is a n industry where the requirements and the demands for improvement in equipment is growing, and where employees have not had salaries commensurate with increases in the cost of living. We have added our support t o efforts by the American Hospital Association and the American Medical Association to have these restrictions removed.
Q
Would the starting salaries for nurses be the same all over the country or by the area?
A
One of the basic premises of the economic and general welfare program that embraces the collective bargaining process i s that the nurses who would be covered by an employment contract determine the conditions. Sometimes it i s possible for nurses to benefit from the salary increases gained by nurses in an adjacent state, but in most instances the nurses in a particular state use the economic base in that state and are willing to live with the salaries in that area. We would not advocate any kind of a salary that would apply to nurses all over this country.
Q
Where can we get a copy of the ANA Economic and General Welfare Pro,gram?
AORN Journal, May 1974, VoZ 19, No 5
The best source for information should be your state nurses’ association headquarters. With this accelerated thrust from ANA, we have developed a plan to give state nurses‘ associations help in developing economic and general welfare programs. There will be more people available at the ANA headquarter’s office to meet with state associations to help them develop such a program. The January issue of the American Journal of Nursing lists the headquarters addresses for all the state nurses’ associations.
A
As ANA becomes more of a collective bargaining agent, will there be a conflict of interest of the nurse in an administrative position who also belongs to
ANA?
A
This has been one of the major conflicts with ANA. It i s not an easy ques-
tion to answer because many nurses in management positions are still directly involved with nursing care. A distinction has to be made between those nurses who have full-fledged administrative authority and those nurses who use their managerial skills in the interest of nursing care and patient care. Trying to separate these two categories presents a problem to all of us in this program. For nurses who are administrators, there i s a conflict of interest for them to be involved in the bargaining unit because they have authority over employment of other nurses. On the other hand, there ore nurses who share their professional nursing
1136
knowledge with other nurses for the improvement of patient care. We believe that those nurses, whatever their title, have enough common interest to come together in a bargaining unit without a conflict of interest. The decision about which nurses should belong to the bargaining unit should be made by the nurses in that health care facility in a compatible way with management. In the past, nurses with the title of supervisor have been automatically excluded from bargaining without examining whether or not there was a conflict of interest in terms of administrative authority vs the professional authority.
ANA has issued a statement about the role of the director of nursing in the collective bargaining process. The case was made for the exclusion of the director of nursing service or her immediate associates from the bargaining unit with the nurses over whom they have administrative authority. We also believe that a director of nursing who has real administrative authority should sit at the bargaining table representing management, responding to the issues that are raised about employment matters affecting nursing care. Nurses in bargaining units should understand that when a director of nursing sits at the bargaining table, she isn’t opposing them, she i s trying to analyze what effect the requests are going to have on patient care. Both sides have to come together in a satisfactory solution.
AORN Journal, May 1974, Vol 19, No 5
0
D Munger, RN, MS
This topic, “Labor Relations Act and its implications for nurses,” deserves top billing on the nursing profession’s agenda and is currently receiving priority attention within the American Nurses’ Association (ANA) . Wherever nurses meet during this next year, there will be discussion about the National Labor Relations Act (Taft-Hartley Act) and ANA’s economic and general welfare program. This AORN Congress coincides with the recent decision of ANA to “organize the nation’s 800,000 active registered nurses for the purpose of professional collective action.” At a special press conference in November, ANA’s President Rosamond Gabrielson announced ANA’s intention to “mobilize the single largest group of health professionals to achieve the highest possible quality of care for all Americans.” Subsequently, at a February meeting, the ANA Board of Directors approved plans submitted by its Commission on Economic and General Welfare to expand the program and authorized funding up to
AORN Journal, M a y 1974, Vol 19, N o 5
Mary Munger, RN, MS, is nursing consultant, Montana State Department of Health and Environmental Sciences, Helena, Mont. She delivered this speech a t the closing.session of the 1974 AORN Congress. Ms Munger is a graduate of St James Hospital School of Nursing, Butte, Mont; Montana State University, Bozeman; a n d the University of California at San Francisco. She i s a member of the American Nurses‘ Association Commission an Economic and General Welfare.
1127
T
...
he average staff nurse is required to respond to without having any decisions input into the decision making process
...
$750,000 for implementation. The expansion of the ANA program which deals with the employment interests of nurses will have a greater impact nationwide if Congress extends the coverage of the National Labor Relations Act to all nonprofit hosiptals in this country. The Taft-Hartley Act1 is the federal law which regulates employer-employee relationships in all business engaged in interstate commerce. The purpose of the Taft-Hartley Act is to define and protect the rights of employers and employees; to encourage collective bargaining; and to eliminate certain practices on the part of labor and management that are harmful to the general welfare. The law is administered and enforced principally by the National Labor Relations Board (NLRB) and the General Counsel acting through 42 regional and other field offices located in major cities. The General Counsel and his staff in the regional offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the regional offices. At present, nonprofit hospitals are
1128
exempt from the provisions of the Taft-Hartley and have been since 1947 when the Taft-Hartley replaced the Wagner Act. During debate, Sen Joseph Tydings from Maryland SUCcessfully submitted an amendment to the Taft-Hartley bill which blocked testimony from opposing groups, including ANA. Tydings argued that nonprofit hospitals were not engaged in interstate commerce; that hospitals were charitable institutions maintained almost entirely by donations: and do not derive a bit of profit.2 Why was this change in the federal labor relations law so important to the nursing profession? In 1946 the ANA House of Delegates formally adopted its economic and general welfare program which recognized collective bargaining as one of the most effective means of involving nurses in the decision making progress at their respective places of employment. Now the organization was faced with a federal law which appeared to prohibit collective bargaining for the majority of its membership who worked in hospitals since most hospitals in this country have a nonprofit tax status. As predicted by William Scott, former legal counsel for ANA, the nonprofit hospital exemption in the Taft-Hartley has proven to be a “long shadow”3 over
AORN Journal, May 1974, Vol 19, N o 5
the nursing profession’s effort toward self-determination in employment matters. Hospital management refused to recognize the rights of nurses to organize and bargain. Moreover, the Taft-Hartley law became a pattern for state legislation, and the nonprofit hospital exemption has been cited often by state courts as a declaration of desirable public policy in interpreting state laws which did not specifically include or exclude nonprofit hospitals. The above reasons are probably sufficient in explaining continued effort to amend the Taft-Hartley, but one must also examine the experience of state nurses’ associations as they attempt to develop economic and general welfare programs. Since 1946 concern about nursing practice and protecting the prerogative of the profession to set standards for practice has been the basis for urging state nurses’ associations to represent nurses in collective bargaining. In spite of barriers presented by management’s interpretation of the TaftHartley limitations, several state nurses’ associations developed effective economic and general welfare programs. They are prepared to represent nurses in bargaining with employers. State nurses’ associations have also influenced changes in state laws to assure bargaining rights for nurses. As of January 1974, there were 475 employment contracts negotiated by 33 state nurses’ associations covering more than 65,000 nurses. Significantly, 381 of the contracts were negotiated in the 11states which have protective labor laws. This indicates that with protection of a law nurses are more willing to act collectively. Through the aggressive economic
1130
and general welfare programs of state nurses’ associations, assisted and guided by ANA, the economic status of the entire nursing profession has improved markedly. However, efforts of nurses’ associations to achieve the greater purpose of the program-the improvement of nursing care for patients is not as easy to document. A few states have been successful, despite great resistance from employers, in obtaining contract provisions directly related t o nursing practice. In far too many instances, however, decisions about staffing patterns, utilization of professional nursing skills, the quality and quantity of nursing care given, etc, do not involve the nurse who are expected t o give the care. The average staff nurse in this country is required to respond to decisions made a t a higher level without having input into the decision making process. The present ANA Commission on Economic and General Welfare is convinced that nurses must develop mechanisms within their employment settings for the implementation of nursing standards. This goal can be realized through the established procedures of collective bargaining. The commission does not view the extension of the Taft-Hartley law as a panacea, but as a tool which can be used by ANA and its state constituents in organizing nurses, particularly in the 34 states without protection under state law for collective bargaining. ANA has worked for the removal of the nonprofit hospital exemption ever since it was added to the TaftHartley. ANA’s involvement with the Taft-Hartley can be correlated to the overall growth and sophistication of ANA’s legislation program. Julia Thompson, in her history of ANA in
AORN Journal, May 1974, Vol 19, N o 5
Washington,’ notes that one of the first efforts made in labor legislation after the ANA Washington office opened in 1951 was an attempt to have the exemption portion, Section 2 (21, removed from the Taft-Hartley. Many of you can well imagine the reaction of Congress to this neophyte effort of a “woman’s organization.” Miss Thompson soon learned that neither labor nor management wanted the law opened for fear each would lose some protection provided under the law. The only thing that happened between 1951 and 1971 was a hearing by both the House and Senate committees in 1953 when a bill to secure the amendment was introduced. It never got out of the committee. Shirley Titus of California testified for ANA in favor of the amendment. In 1971-1972 the bill to amend the TaftHartley received extensive hearings by both the House and Senate and almost made it through only to get caught in a time bind in the Senate. There is still a great deal of hope for H R 1236 in this 1974 session of Congress. If passed, it will lift the “long shadow” for all employees of nonprofit hospitals. ANA Commission members have testified in support of including nonprofit hospitals under the TaftHartley a t the four Congressional committee hearings held during the past two years. Retention of the section which gives professionals the right to a bargaining unit of their own has been stressed, and commissioners have requested a change in Section 2(11) which presently defines a supervisor in a way that it might exclude many nurses who hold the title of super-
1132
visor but who are not in managerial positions. The report of the House special subcommittee on labor to the full committee dated July 27, 1972 indicates someone is hearing ANA’s concern. “The ANA urged that industrial concepts of ‘supervisor’ not be carried over into the hospital industry, possibly leading to the exclusion of head nurses or charge nurses from bargaining units. These nurses are presently included in bargaining units in some states. Your committee’s intent in extending NLRA coverage to nonprofit hospitals is that nurses, as well as all other hospital employees, enjoy the rights guaranteed to other employees covered by the act, and it is your committee’s view that nurses with only nominal supervisory duties should not be considered as ‘supervisor’ within the meaning of the Act.” The nursing profession has been called a sleeping giant. It has been stretching its muscles in the past few years and now other forces are at work to waken its spirit more fully. A federal law encouraging the use of collective bargaining in nonprofit hospitals, combined with an accelerated thrust from ANA to help nurses organize to implement the profession’s standards of practice, should be a winning combination for dramatically improving the quality and quantity of nursing care in this country. FOOTNOTES
I . National Labor Relations Board, A Layman’s Guide To Basic Law Under The National Labor Relations Act. 2. W Scott, D Smith and E Porter, “The Long Shadow,” American J0urna.l of Nursing, 3 (1966)
538-543. 3. Ibid. 4. J Thompson, “ANA In Washington,“ American Nurses‘ Associafion, 1972.
AORN Journal, May 1974, Vol 19, N o 5
Q
iaestions from the audience &the closing session
Q
I think collective bargaining will be
an asset to the professional nursing organization. My only concern is for the patients if there i s a strike. Who will take care of patients especially on emergency services such a s ER and OR?
A
This is a timely question and a concern of all of ours. In the experience of nurses who have been involved in strikes, arrangements have been made in advance with management about the care of patients. There i s no evidence that where a strike has occurred patients have been neglected. It i s possible for elective surgeries to be rescheduled. Nurses have been willing to come in for emergencies. They have not denied nursing care to patients. From information the ANA Commission has reviewed, we have no evidence that nurses would neglect patients. I would also point out that we are not advocating strike. W e believe that if nurses can sit down with employers and can discuss in a reasonable way the issues thot concern everybody in this country as far as health care, we will avoid these kinds of disputes.
Q
What i s A N A doing to remove the 5.5% restriction on health care facili-
ties?
A
We have been extremely concerned about the limitations placed on health care facilities and on all health care workers b y President Nixon’s stabilization program. I can report to you that ANA, a t the direction of our Commission, has responded
1134
to every memo from the Cost of Living Council during Phase 1, Phase 2, Phase 3, Phase 3%, and now Phase 4. W e point out with as much influence as we can muster that this is too restrictive. This is a n industry where the requirements and the demands for improvement in equipment is growing, and where employees have not had salaries commensurate with increases in the cost of living. We have added our support t o efforts by the American Hospital Association and the American Medical Association to have these restrictions removed.
Q
Would the starting salaries for nurses be the same all over the country or by the area?
A
One of the basic premises of the economic and general welfare program that embraces the collective bargaining process i s that the nurses who would be covered by an employment contract determine the conditions. Sometimes it i s possible for nurses to benefit from the salary increases gained by nurses in an adjacent state, but in most instances the nurses in a particular state use the economic base in that state and are willing to live with the salaries in that area. We would not advocate any kind of a salary that would apply to nurses all over this country.
Q
Where can we get a copy of the ANA Economic and General Welfare Pro,gram?
AORN Journal, May 1974, VoZ 19, No 5
The best source for information should be your state nurses’ association headquarters. With this accelerated thrust from ANA, we have developed a plan to give state nurses‘ associations help in developing economic and general welfare programs. There will be more people available at the ANA headquarter’s office to meet with state associations to help them develop such a program. The January issue of the American Journal of Nursing lists the headquarters addresses for all the state nurses’ associations.
A
As ANA becomes more of a collective bargaining agent, will there be a conflict of interest of the nurse in an administrative position who also belongs to
ANA?
A
This has been one of the major conflicts with ANA. It i s not an easy ques-
tion to answer because many nurses in management positions are still directly involved with nursing care. A distinction has to be made between those nurses who have full-fledged administrative authority and those nurses who use their managerial skills in the interest of nursing care and patient care. Trying to separate these two categories presents a problem to all of us in this program. For nurses who are administrators, there i s a conflict of interest for them to be involved in the bargaining unit because they have authority over employment of other nurses. On the other hand, there ore nurses who share their professional nursing
1136
knowledge with other nurses for the improvement of patient care. We believe that those nurses, whatever their title, have enough common interest to come together in a bargaining unit without a conflict of interest. The decision about which nurses should belong to the bargaining unit should be made by the nurses in that health care facility in a compatible way with management. In the past, nurses with the title of supervisor have been automatically excluded from bargaining without examining whether or not there was a conflict of interest in terms of administrative authority vs the professional authority.
ANA has issued a statement about the role of the director of nursing in the collective bargaining process. The case was made for the exclusion of the director of nursing service or her immediate associates from the bargaining unit with the nurses over whom they have administrative authority. We also believe that a director of nursing who has real administrative authority should sit at the bargaining table representing management, responding to the issues that are raised about employment matters affecting nursing care. Nurses in bargaining units should understand that when a director of nursing sits at the bargaining table, she isn’t opposing them, she i s trying to analyze what effect the requests are going to have on patient care. Both sides have to come together in a satisfactory solution.
AORN Journal, May 1974, Vol 19, No 5
0