After reading the text, please answer the question: Have unions outlived their usefulness? (250 words)

After reading the text, please answer the following
question: Does unionization among healthcare professionals compromise
professional integrity? Please respond in opposition to your personal
beliefs using information you learned in the text (200-250 words).MANAGING WITH ORGANIZED LABOR

Donna Malvey and Amanda Raffenaud

Learning Objectives
After completing this chapter, the reader should be able to

? address the relationship of organized labor and management in healthcare,
? distinguish the different phases of the labor relations process,
? describe the evolving r ole of unions in the healthcare workforce,
? examine legislative and judicial rulings that affect management of organized labor in healthcare settings,
? review emerging healthcare labor trends, and
? consider the potential impact of the Internet on the labor?management relationship.

Introduction

The labor relations process occurs when management (as the representative for the employer) and the union (as the exclusive bargaining representative for the employees) jointly determine and administer the rules of the workplace. A union is an organization formed by employees for the purpose of acting as a single unit when dealing with management about workplace issues, and hence the term organized labor . Unions are not present in every organization because employees must authorize a union to represent them. Unions typically are viewed as threats by management because they interfere with management?s ability to make and implement decisions. Once a union is present, management may no longer unilaterally make decisions about the terms and conditions of work. Instead, management must negotiate these decisions with the union. Similarly, employees may no longer communicate directly with management about work issues but instead must go through the union. Thus, the union functions as a middleman, which is relatively expensive to maintain for both parties. Employees pay union dues, and management incurs additional costs for such things as contract negotiations and any increases in salaries and benefits negotiated by the union (Freeman and Medoff 1984).
In healthcare, because labor costs generally account for 70 percent to 80 percent of expenditures, controlling labor costs is critically important. Thus, if a union negotiates even a minor wage or benefit increase, it will result in a significant increase in total costs. Consequently, management has a strong incentive to keep unions out of the organization (Scott and Seers 1996). However, given the trends of unionization in healthcare, managers are increasingly forced to work with unions. This chapter examines the phenomenon of healthcare unionization and provides direction for managing with organized labor. In addition, it discusses the possible behaviors and strategies that constitute the labor?management relationship; explains the generic labor relations process of organizing, negotiating, and administering contracts; explores developments in organizing a relatively unorganized healthcare workforce; considers the impact of labor laws, amendments, and rulings on human resources (HR) strategies and goals; and considers the potential impact of the Internet on the labor?management relationship.
Managing with organized labor involves the application and maintenance of a positive labor relations program within the organization. A productive and positive labor?management relationship can only be accomplished through integration with other HR functions. For example, employees expect management to provide environments that are clean and safe from workplace hazards and health-related concerns, such as AIDS and hepatitis B. If management allows the environment to deteriorate, union organizers will focus on these issues (Becker and Rowe 1989; Fennell 1987). In addition, the labor relations process occurs across all levels of the organization and involves all levels of management. Upper-level management will develop objectives and strategies regarding wage rates and staffing ratios while mid- level managers and first-line supervisors will implement these objectives.
Developing strategies and goals to implement a positive labor relations program in healthcare requires an understanding of the generic labor relations process of organizing, negotiating, and administering contracts with a union as well as specific knowledge of emerging healthcare labor trends. A productive and positive labor?management relationship involves compromise by both par – ties because of the adversarial nature of the relationship. Just because a union has won the right to represent employees does not mean that management has to accept all of its terms. All parties?management, unions, and employees?have a vested interest in the success and survival of the organization; yet they also have opposing or conflicting interests. For example, unions will look toward improving the benefits package for employees, while management, faced with budget cutbacks and declining reimbursements, will have concerns about containing costs. Thus, the challenge for management is working with the union to reconcile differences in a fair and consistent manner.
As Exhibit 12.1 suggests, the labor?management relationship reflects a continuum of possible behaviors and strategies, ranging from the most positive or collaborative (in which management and the union share common goals oriented toward the organization?s success) to the most negative or oppositional and self-serving. Even if the relationship is neutral and both parties cooperate to maintain the status quo, a variety of factors can cause the relationship to shift in either direction. For instance, restructuring, such as a merger, may create uncertainty for both the union and management and, as a result, may reposition their relationship along the continuum. However, the direction in which the relationship moves will depend largely on the knowledge and understanding of the labor relations process on both sides of the issue.

Overview of Unionization
Union membership has been declining steadily for decades. In the 1950s to 1970s, union membership represented 25 percent to 30 percent of the US workforce. During the 1980s and 1990s, organized labor?s influence and bargaining power declined and weakened as the nature of US industries shifted from factories and traditional union strongholds to service and technologies (Fottler et al. 1999). This trend appears to have continued, as evidenced by the fact that organized labor has been unable to make any

net gains in membership despite downward pressure on wages, increasing healthcare insurance costs, and outsourcing of service and manufacturing jobs overseas ( Christian Science Monitor 2004).
The union membership rate has steadily decreased from 20.1 percent in 1983, the first year for which comparable union data are available, to 11.3 percent in both 2012 and 2013. In 2013, the total number of employees belonging to a union was approximately 14.5 million. Unions appear to be more successful in organizing workers in the public sector than in the private sector and more successful in healthcare than in other industries. The union rate for government or public-sector workers has held steady at approximately 35.3 percent since 1983, while the rate for private-sector workers has fallen to 6.7 percent. Within the public sector, however, local government workers had the highest union membership rate?40.8 percent. This group reflects several heavily unionized occupations such as teachers, firefighters, and police officers (Bureau of Labor Statistics 2000a, 2000b, 2004, 2006a, 2006b, 2014b; Scott and Lowery 1994).
The healthcare workforce comprises an estimated 16.4 million workers and represents one of the largest pools of unorganized workers in the United States and a prime target for union organizers. Only 7.2 percent of the healthcare workforce was affiliated with union membership in 2013 (Bureau of Labor Statistics 2014b). Unions in the healthcare sector, other than the hospital segment, have consistently won a greater percentage of their elections than those in other industries (Scott and Seers 1996). Many of the fastest-growing occupations are health related, and registered nurses and nursing aides, orderlies, and attendants are projected to experience greater growth during this decade than other health occupations (Bureau of Labor Statistics 2014a; Department for Professional Employees 2014; Hecker 2004). One-third of the projected job growth from 2012 to 2022 will occur in the healthcare field (Bureau of Labor Statistics 2013). Even though labor surveys indicate that the demand for unions exists, healthcare unions have not yet realized significant membership increases (Kearney 2003; Christian Science Monitor 2004). Nevertheless, some labor experts believe that health- care unions represent one of the few areas in which organized labor has been showing some energy. Healthcare unions are reported to have invested heavily in recruiting members and helping members gain influence (Evans 2006).

The Labor Relations Process
In an attempt to protect workers? rights to unionize, the US Congress passed the National Labor Relations Act (NLRA) in 1935. This act serves as the legal framework for the labor relations process. Although the NLRA has been amended over the years, it remains the only legislation that governs federal labor relations. The law contains significant provisions intended to protect workers? rights to form and join unions and to engage in collective bargaining. The law also defines unfair labor practices, which restrict both unions and employers from interfering with the labor relations process. The NLRA delegates to the National Labor Relations Board (NLRB) the responsibility for overseeing implementation of the NLRA and for investigating and remedying unfair labor practices. NLRB rule making occurs on a case-by-case basis.
Key participants in the labor relations process include (1) management officials, who serve as surrogates for the owners or employers of the organization; (2) union officials, who are usually elected by members; (3) the government, which participates through executive, legislative, and judicial branches occurring at federal, state, and local levels; and (4) neutral third parties such as arbitrators. The process also involves three phases that are equally essential: the recognition phase, the negotiation phase, and the administration phase.

Recognition Phase
During this phase, unions attempt to organize employees and gain representation through either voluntary recognition of the union or a representation election, which certifies that the union has the authority to act on behalf of employees in negotiating a collective bargaining agreement. In rare cases, the NLRB may direct an employer to recognize and bargain with the union if evidence exists that a fair and impartial election would be impossible. Since the early 1990s management strategies and tactics have become more aggressive during the recognition phase as management has endeavored to keep unions from becoming the employees? representative. For example, management may institute unfair labor practices such as filing for bankruptcy, illegally firing union supporters, and relocating the company. Although unions may file grievances with the NLRB over these practices and the use of any illegal or union-busting tactics, legal resolution usually occurs years after the fact and long after union elections have been held. Thus, both unions and management understand that the battle lines are drawn in the recognition phase, and both sides will be fervently engaged in shoring up support.
The desire to unionize is believed to result from three issues: wages, benefits, and employee perceptions about the workplace. Because ascertaining the desires of employees is difficult, management must rely on signals or indicators in the workplace. Exhibit 12.2 summarizes some of the behaviors that may indicate organizing activities or the potential for organizing employees. For example, high turnover of 20 percent or greater, depending on nursing specialty, characterizes healthcare institutions such as hospitals (NSI Nursing Solutions Inc. 2014). However, when employees are leaving their jobs for a local competitor, management must investigate the underlying reasons for turnover. Even simple issues, such as an increase in requests for information on policies and procedures, can indicate problems and should not be discounted.

During the recognition phase, the union solicits signed authorization cards that designate the union to act as the employees? collective bargaining representative. When at least 30 percent of employees in the bargaining unit have signed their cards, the union requests that employers voluntarily recognize the union. Voluntary recognition is rarely granted by employers, how- ever, and occurs less than 2 percent of the time in healthcare organizations (NLRB 2005). When employers refuse voluntary recognition of the union, the union is then eligible to petition the NLRB for a representation election. In response to the petition, the NLRB verifies the authenticity of the sig- natures collected by the union, determines the appropriate bargaining unit, and sets a date for a secret-ballot election. Healthcare workers represent a significant number of all workers participating in NLRB elections. According to NLRB annual reporting, about 16 percent of the 1,639 NLRB elections held involved healthcare workers, and these workers were more likely to vote for a union compared with all other industries (NLRB 2009).
In the past decade, unions have supported legislative efforts that would amend existing labor laws to eliminate secret-ballot elections. Such efforts are perceived to be part of organized labor?s strategy to target the union election process itself. Under existing labor law, the period leading up to the election can take several months to a year, during which employers are permitted to contest eligibility of workers to vote in a unit. Subsequent hearings and appeals can further extend the process. Even though it is illegal for employers to intimidate workers during this period, unions allege such tactics. Unions also claim that by the time the election is actually held, workers are too afraid to vote for the union as their representative (Kaira 2005). Although legislative attempts to eliminate secret-ballot elections have been unsuccessful, they reflect the continuing determination of unions to revise the organizing process in their favor.
In 2011, two board members of the NLRB voted to make a number of changes to the election process, including what became known as the ?quickie elections? rule. This rule, which was later invalidated by the US District Court for the District of Columbia in Chamber of Commerce of the United States of Am. v. NLRB , No. 1:11-cv-02262 (D.D.C., May 14, 2012), would have reduced the average time between filing of an election petition and actual voting from 38 days to 25 days (Brown and DeLarco 2012).

Bargaining Units
The NLRB determines which employees are eligible to be in a bargaining unit and thereby eligible to vote in the election. Currently, the NLRB permits a total of eight bargaining units in healthcare settings. The implications of this number and some historical perspective are provided in the section of this chapter that summarizes legislative and judicial rulings. Although the NLRB has modified its criteria over the years, it has not changed its outlook on managerial Copying and distribution of this PDF is prohibited without written permission. For permission, please contact Copyright Clearance Center at www.copyright.com Human Resources in Healthcare 396 or supervisory employees, who are ineligible for membership in a bargaining unit. Under a provision of the NLRA (29 U.S.C. ? 15(11)), an employee is a ?supervisor? if the employee has the authority, in the interest of the employer, to engage in specific activities, including responsible direction of other employees, where exercise of such authority requires the use of independent judgment. In a landmark 2006 ruling, the NLRB clarified and set forth guidelines for determining whether an individual is a supervisor under the NLRA. The NLRB ruled that charge nurses were supervisors, thereby making them and certain other nurses like them ineligible for bargaining unit representation. This ruling represents an opportunity to reclassify many nurses as management and thereby potentially decreases the union?s ability to recruit new members.
Generally, the union election is scheduled to occur on workplace premises during work hours. The union is permitted to conduct a pre- election campaign in accordance with solicitation rules that are prescribed for both unions and management. For example, patient care areas such as treatment rooms, waiting areas used by patients, and elevators and stairs used in transporting patients are off limits, but kitchens, supply rooms, business areas, and employee lounges are permissible locations. During the campaign, management may not make threats or announce reprisals regarding the out- come of the election, such as telling nurses that layoffs will result if the union is elected or that pay raises will be given if the union loses. Management also may not directly ask employees about their attitudes or voting intentions or those of other employees. Management is allowed, however, to conduct captive-audience speeches, which are meetings during work time to inform employees about the changes that certifying a union will mean for the organization and to persuade employees to give management another chance.
To win the election and be certified by the NLRB as representing the bargaining unit, the union must achieve a simple majority, or 50 percent plus 1 of those voting. Consequently, if voter turnout is low, the decision to be unionized will be decided by less than a majority of employees eligible to vote. When the union wins the election, it assumes the duties of the exclusive bargaining agent for all employees in the unit even if those employees choose not to join the union and pay membership dues. Similarly, any negotiated agreements will cover all employees in the bargaining unit. If the union loses, however, it can continue to maintain contact with employees and pro- vide certain representational services such as informing them of their rights. The union may lose the right to represent employees in the bargaining unit through a decertification election.
Rulings by what appears to be an activist and pro-union NLRB have affected bargaining unit composition. In the NLRB?s decision in Specialty Health- care and Rehabilitation Center of Mobile , 357 NLRB No. 83 (August 26, 2011), the NLRB overruled a 20-year-old case that had established clear categories of appropriate units for non-acute care facilities. In doing so, the NLRB opened up possibilities of micro-organizing activity for healthcare employers that are not acute care hospitals. That is, these employers are expected to confront union organizing efforts for small groups of employees. Because healthcare employers typically have many classes of employees, this decision can be particularly problematic for management (Brown and DeLarco 2012).

Negotiation Phase
After winning the election, the union will begin to negotiate a contract on behalf of the employees in the bargaining unit. Federal labor laws encourage collective bargaining on the theory that employees and their employers are best able to reach agreement on issues such as wages, hours, and conditions of employment by negotiating their differences. The process of negotiating this contract is referred to as collective bargaining . The NLRA (? 8(d), 1935) defines collective bargaining as

the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.
The NLRA requires an employer to recognize and bargain in good faith with a certified union, but it does not force the employer to agree with the union or make any concessions. The key to satisfying the duty to bargain in good faith is approaching the bargaining table with an open mind and negotiating with the intention of reaching final agreement.
Issues for bargaining have evolved as the result of NLRB and court decisions. Bargaining issues are categorized as illegal, mandatory, or voluntary (permissive). Illegal subjects, such as age-discrimination employment clauses, may not be considered for bargaining. Mandatory bargaining issues are related to wages, hours, and other conditions of employment; Exhibit 12.3 provides a partial list of these issues. Mandatory subjects must be bargained if they are introduced for negotiation. Voluntary, or permissive, bargaining issues carry no similar restriction. Examples of voluntary issues include strike insurance and benefits for retired employees.
Prior to bargaining, management will formulate a range for each issue, which is similar to an opening offer, followed by a series of benchmarks that represent expected levels of settlement. Of course, management must calculate a resistance point beyond which it will cease negotiations. Fisher and Ury

(1981) developed a principled method of negotiation based on the merits or principles of the issues. The following four basic points are involved:
1. People. Separate the people from the problem.
2. Interests. Focus on interests, not the positions that people hold.
3. Options. Generate a variety of alternative possibilities.
4. Criteria. Insist that solutions be evaluated using objective standards.

According to this method, management will formulate a best alternative to a negotiated agreement for each issue. In this manner, negotiators evaluate whether the type of agreement that can be reached is better than no agreement at all. By considering mutual options for gain, the negotiator offers a more flexible approach toward bargaining and increases the likelihood of achieving creative solutions.
Collective bargaining is a laborious and time-consuming endeavor. Bargaining requires not only listening to others but attempting to under – stand the motivational force behind the dialogue. Successful negotiators make every effort to understand fully what truly underlies bargaining positions and why these positions are so fiercely held. Also, negotiators must be receptive to any signals that are being communicated, including nonverbal communication such as body language (Fisher and Ury 1981). Bargaining, as depicted in Exhibit 12.4, can be conceptualized as a continuum of behaviors and strategies. At one end of the continuum is concessionary bargaining , in which the employer asks the union to eliminate, limit, or reduce wages and other commitments in response to financial constraints. This type of bargaining is likely to occur when the organization is in financial jeopardy and is struggling to survive. At the opposite end is integrative bargaining , which seeks win-win situations and solutions that creatively respond to both parties? needs. This type of bargaining requires the trust and cooperation of both parties. In the center is distributive bargaining , which is a win-lose type in which each party gives up something to gain something else. This type of bargaining is likely when negotiations are contentious and full of conflict.
Even when both parties negotiate in good faith and fulfill the covenants of the NLRA, an agreement still may not be reached. When this hap- pens, parties are said to have reached an impasse. To resolve an impasse, a variety of techniques may be implemented. These techniques involve third parties and include mediation, in which a mediator evaluates the dispute and then issues nonbinding recommendations. If either party rejects the media- tor?s recommendations, arbitration is an alternative. Similar to mediators,

arbitrators are neutral third parties, but their decisions are legally binding. For example, arbitrators may recommend that either party?s position be accepted as a final offer, or they can attempt to split the differences between the two parties? positions.
If these techniques fail to resolve the impasse, employers or the union can initiate work stoppages that may take the form of lockouts or strikes. A lockout occurs when the employer shuts down operations either during or prior to a dispute. A strike, on the other hand, is employee initiated. Lock- outs or strikes can occur during negotiations and also during the life of the contract. Special provisions for these work stoppages in healthcare settings are discussed in the section on the history of judicial and legislative rulings later in this chapter.
In addition, no-strike and no-lockout clauses can be negotiated in the agreement. No-strike clauses essentially prohibit strikes, either unconditionally or with conditions. An unconditional no-strike clause means that the union and its members will not engage in either a strike or a work slowdown while the contract is in effect. A conditional no-strike clause bans strikes and slowdowns except in certain situations and under specific conditions, which are delineated in detail in the agreement. Comparable clauses for lockouts exist for employers.

Administration Phase
When an agreement between the union and the employer is reached, it must be recorded in writing and executed in good faith, which means that the terms and conditions of the agreement must be applied and enforced. This agreement will include disciplinary, grievance, and arbitration procedures. The collective bargaining agreement imposes limitations on the disciplinary actions that management may take. The right to discharge, suspend, or discipline is clearly enunciated in contractual clauses and in the adoption of rules and procedures that may or may not be incorporated into the agreement.
Management may discipline employees through discharge only for sufficient and appropriate reasons and must base all procedures on due process. The union?s role in the process is to defend employees and to determine the propriety of management action. The burden of proof rests with management to prove that whatever action was taken was proper and consistent with progressive discipline procedures. If the grievance proceeds to arbitration, arbitrators will usually support management if they find evidence of progressive discipline and evidence that employees were fully aware of the standards against which their behavior was to be measured. These standards include very basic rules and regulations that outline offenses for which employees will be subject to disciplinary action and the extent of such action.
The heart of administering the collective bargaining agreement is the grievance procedure. This procedure is a useful and productive management tool that allows implementation and interpretation of the contract. A grievance must be well defined and restricted to violations of the terms and conditions of the agreement. However, other conditions may give rise to a grievance, including violations of the law or company rules, a change in working conditions or past company practices, or violations of health and safety standards.
The grievance process usually contains a series of steps. The first step always involves the presentation of the grievance by the employee (or representative) to the immediate, first-line supervisor. If the grievance is not resolved at this step, broader action is taken. Because most grievances involve an action by the immediate supervisor, the second step necessarily must occur outside the department and at a higher level; thus, the second step will involve the employee (or representative) and a department head or other administrator. Prior to this meeting the grievance will be written out, dated, and signed by the employee and the union representative. The written grievance will document the events as the employee perceived them, cite the appropriate contract provisions that allegedly were violated, and indicate the desired resolution or settlement prospects. If the grievance is unresolved at this point, a third step that involves an in-house review by top management becomes necessary. A grievance that remains unresolved at the conclusion of the third step may go to arbitration if provided for in the contract and if the union is in agreement.
Most collective bargaining agreements restrict the arbitrator?s decision to the application and interpretation of the agreement and make the decision final and binding on both parties. Most agreements also specify methods for selecting arbitrators. If the union agrees to arbitration, it must notify management, and an arbitrator is jointly selected. In evaluating the grievance, arbitrators focus on a variety of criteria, including the actual nature of the offense, the past record of the grieving employee, warnings, knowledge of rules, past practices, and discriminatory treatment. Thus, a large number of factors interact, making arbitration a complex process.
An arbitration hearing gives each side an opportunity to present its case. As in a court hearing, witnesses, cross-examinations, transcripts, and legal counsel may be used. Like a court hearing, arbitration is adversarial. Thus, cases may be lost because of poor preparation and presentation. Generally, the courts will enforce an arbitrator?s decision unless it is shown to be unreasonable, unsound, or capricious relative to the issues under consideration. Also, if an arbitrator has exceeded his or her authority or issued an order that violates existing state or federal law, the decision may be vacated. Consistent and fair adjudication of grievances is the hallmark of a sound labor?management relationship.
In healthcare settings, the strike is the most severe form of a labor? management dispute. A critical part of planning for negotiations is an honest assessment of strike potential. This involves identifying strike issues that are likely to be critical for all parties. Although estimating the impact of possible strikes, including economic pressures from lost wages and revenues, is essential, the key to a successful strike from the perspective of the union is to impose enough pressure on management to expedite movement toward a compromise. Pressure may be psychological as well as economic. In health- care settings, the real losers in a strike are the patients and their families. During a strike, patients may be denied services or forced to postpone treatment, be relocated to another institution, or even be discharged prematurely.
Management must be aware of critical factors that affect its ability and willingness to withstand a strike. When attempting to estimate the impact of these factors, managers will evaluate several key indicators, including revenue losses, timing of the strike, and availability of replacements for striking workers. However, management must also contemplate factors that affect the union, such as the question of whether striking employees will be entitled to strike benefits, especially health benefits. If so, for how long? Both parties must also consider the impact of outside assistance to avoid or settle a strike

A Review of Legislative and Judicial Rulings

Exhibit 12.5 summarizes important legislative and judicial rulings and their impact on healthcare settings. As the exhibit indicates, in the late twentieth century, significant rulings have centered primarily on organizing issues. In 2004, the focus appeared to shift to financial issues such as changes to the Fair Labor Standards Act, which exempted most nurses from overtime pay. Unions were also affected by changes to the Labor-Management Reporting and Disclosure Act of 1959. Stricter reporting requirements that aimed at increased transparency and accountability for how unions spend dues money were instituted ( Harvard Law Review 2004). In 2006, attention was directed toward organizing issues, specifically the determination of who is a nursing supervisor; a supervisor, after all, is excluded from the bargaining u