Split decision: Nurses lose crucial ruling on union representation, but win right to

  1. This article just in from: Modern Healthcare Magazine http://www.modernhealthcare.com/curr...ished=20010604

    Split decision: Nurses lose crucial ruling on union representation, but win right to sue


    By: Jeff Tieman and Mark Taylor

    Attention healthcare administrators: Nurses can sue your institution for fraud, but they can't join unions if they are assigned even minor supervisory functions.
    Those are the conclusions of two precedent-setting rulings last week by the federal courts, with healthcare employers winning one and nurses winning the other.

    The disparate rulings were indicative of the growing rift between cost-conscious healthcare employers and an increasingly militant nursing workforce.

    For example, 12 hospitals in the Minneapolis-St. Paul area faced a June 1 strike by about 7,700 registered nurses represented by the Minnesota Nurses Association. Three of the 12 hospitals avoided the strike by reaching a contract agreement with nurses on May 31, and the remaining nine reached tentative agreements with their nurses, who were to vote on the contracts over the weekend. The strike would have been the largest work stoppage ever by U.S. nurses.

    In the more important of the two federal court rulings, the U.S. Supreme Court, by a 5-4 vote, said nurses who perform even the most basic supervisory functions are ineligible to join unions because they aren't protected by the National Labor Relations Act. The 66-year-old law allows nonsupervisory employees to collectively bargain with their employers.

    In the second ruling, by the 5th U.S. Circuit Court of Appeals in New Orleans, nurses and individuals were granted the right to file whistleblower fraud lawsuits on behalf of the federal government even though they were not personally injured by the alleged fraud.

    Ohio Hospital Association spokeswoman Mary Yost said the two lawsuits reflect a trend hospitals would like to reverse. ``With growing nurse shortages, we need to focus on improving the workplace environment of hospitals to minimize the need for involvement by labor unions and the courts,'' she said.

    The industry also may face a growing rift regarding the severity of the nursing shortage after the release of a federal report last week that said no widespread shortage exists (See story, p. 13).

    Defining a supervisor

    The Supreme Court ruling fueled fears by the American Nurses Association that hospitals will begin assigning basic ``supervisory'' tasks to nurses to prevent them from seeking union representation.

    In its ruling, the court determined that nurses use independent judgment and act as supervisors even when they call only on professional or technical training-not hierarchical authority-to direct the activities of other employees. The nursing community responded to the court's decision by saying the justices had denied registered nurses basic workplace protections.

    The case grew out of a union dispute at Caney Creek, a residential treatment center for mental illness and retardation operated by Kentucky River Community Care, based in Hazard, Ky. In 1997, Caney Creek objected to allowing six of its nurses to join the Kentucky State District Council of Carpenters, a labor union that petitioned the National Labor Relations Board to represent 110 Caney Creek employees, a combination of nurses, other caregivers and maintenance and clerical workers. Kentucky River argued that as supervisors, the nurses were not entitled to union representation.

    The NLRB disagreed and ordered Caney Creek to accept the nurses' union membership. Kentucky River then appealed that order to the 6th U.S. Circuit Court of Appeals in Cincinnati, which found that the nurses' duties did make them supervisors.

    The National Labor Relations Act defines a supervisor as anyone who acts in the interest of the employer and has the authority to make decisions relative to hiring, promoting, discharging, rewarding or disciplining employees. Supervisory activities, the law says, must ``not (be) of a merely routine or clerical nature, but require the use of independent judgment.''

    Following the 6th Circuit's ruling that the six Kentucky River nurses fit that bill, the NLRB appealed to the Supreme Court, which upheld the lower court's decision.

    The ANA quickly denounced the high court's decision.

    ``Some hospitals may attempt to interpret the Supreme Court decision too broadly and would claim that the daily and routine delegation of certain work to other employees is supervisory, and I think that would be a mistake,'' said Alice Bodley, the ANA's general counsel.

    The NLRB had argued to the Supreme Court in February that the Kentucky River nurses weren't supervisors, because they exercised ``ordinary professional or technical judgment'' and not ``independent judgment'' when they directed other employees.

    In the court's majority opinion, Justice Antonin Scalia wrote, ``The Court of Appeals rejected that interpretation, and so do we . . . What supervisory judgment worth exercising, one must wonder, does not rest on professional or technical skill or experience?''

    Nursing association representatives called the ruling unfair and even harmful to patients.

    ``The decision will have a chilling effect on the ability of nurses to form unions and gain valuable workplace protections under the National Labor Relations Act because employers may now try to claim that many more registered nurses are supervisors,'' said Cheryl Johnson, chair of the United American Nurses, a labor arm of the ANA which represents about 100,000 nurses for collective-bargaining purposes. ``The justices have confused what nurses do as a routine part of their job with who the employer claims they are in the organizational hierarchy.''

    Maureen Mudron, Washington counsel for the American Hospital Association, would not say if she thinks hospitals will attempt to dodge the union bullet by changing nurses' supervisory status. She said the Supreme Court decision allows hospitals ``to fully utilize their resources'' and gives them the latitude to designate supervisors as necessary to provide high-quality care.

    All nine justices agreed that the burden of proving supervisory status in labor disputes rests on the party asserting such status. But they split 5-4 on whether the NLRB properly assessed the roles of the Kentucky River nurses.

    Right to blow the whistle

    Although nurses with supervisory functions may not be able to participate in collective bargaining with their employer, they can sue them for Medicare fraud.

    By an 11-2 margin, the full 5th U.S. Circuit Court of Appeals ruled in a pending healthcare fraud case that individuals have standing to file whistleblower lawsuits on behalf of the federal government even if they were not injured personally by the alleged fraud.

    The court's decision is a major victory for whistleblowing plaintiffs and a major defeat for institutional healthcare providers.

    In asserting the standing of individuals, the full appeals court overturned an earlier ruling by a three-judge panel of the same court. The panel, in turn, had upheld a federal district court that said the plaintiff in the case, a nurse, had no standing to sue.

    ``It's clearly an important decision because had the defendants prevailed, whistleblower actions would be pretty much a thing of the past,'' said Daniel Mulholland, an attorney with the Pittsburgh office of Horty, Springer & Mattern. ``(The decision is) an unfortunate thing from the perspective of providers. It will encourage people who have no standing in the affair to sue; opening the doors to anybody who wants to sue can't be a good thing for the provider community.''

    The case involves a whistleblower fraud lawsuit filed in 1994 against Houston's St. Luke's Episcopal Hospital, two doctors and several other institutions of the Texas Heart Institute. In her suit, Joyce Riley, a former nurse at St. Luke's, accused the hospital and the other providers of defrauding Medicare by unnecessarily admitting patients, upgrading services to patients who didn't require the higher and costlier level of care, and hiring an unlicensed physician to practice medicine.

    In October 1997, U.S. District Judge Kenneth Hoyt in Houston ruled that Riley had no standing to sue, because the federal government declined to intervene. Hoyt's 21-page opinion-affirmed in 1999 by the 5th Circuit's three-judge panel-asserted that the False Claims Act violated the ``take care clause'' of the U.S. Constitution, which suggests the government may not confer to private parties powers that belong to the executive branch.

    In reversing the panel, the majority of the full appellate court found little cause for concern, saying enough protections were built into the act to prevent it from becoming an ``impermissible delegation of power'' to private parties. The appellate court remanded the case to the district court for trial, although the defendants still have the option of appealing to the U.S. Supreme Court. A St. Luke's spokesman said the hospital is reviewing the opinion and its options.


    [Modern Healthcare Magazine]
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  2. 9 Comments

  3. by   natalie
    No time was wasted trying out the ruling.

    http://starbulletin.com/2001/06/05/news/story11.html

    The National Labor Relations Board on Friday impounded all ballots cast by 45 employees of Maui Medical Group. The employees had voted whether to have union representation by the Hawaii Nurses Association.

    The employer challenged all ballots of the registered nurses, licensed practical nurses and medical assistants, alleging that 37 of the positions are supervisory and thus not eligible to be represented by the union, said Tom Cestare of the NLRB.

    However, Cestare said the board's "regional director had made the decision they were employees, not supervisors" at an election hearing on May 2.

    Maui Medical Group filed a motion challenging the election at 3 p.m. the day before the election was held. The labor board decided it was too late to stop the election and impounded the ballots after the vote.

    Perry Confalone, an attorney representing Maui Medical Group, said the challenge was made in light of a U.S. Supreme Court decision on May 29 changing the way labor officials should determine supervisory status.

    Nancy McGuckin, executive director of the HNA, said 34 of 45 positions are not supervisory.

    "I think they're using a new Supreme Court decision to try to thwart an election at their facility," McGuckin said.

    She said that during a hearing of the Maui Medical Group on May 2, the regional director of the board had argued there were just four supervisors.

    "I think it's a ploy and a tactic to not let them have a fair election," McGuckin said.

    McGuckin said the issue of whether registered nurses act in supervisory roles has been a long-standing issue in this country.

    Cestare said the issue is complicated because nurses give orders, which may be equated to a supervisory role. He said if the board rules any ballots ineligible, they can be removed, and there is no need for a repeat vote.

    The labor board's regional San Francisco director will rule on the employer's motion challenging the votes and whether to reopen the hearing records.
  4. by   imaRN
    hummmmmmmm, lots to digest on this subject! Thanks for the news! imaRN
  5. by   mustangsheba
    First, I want to say how much I appreciate those of you who take the time to put all this great information on the board. Second, this subject is always going to be coming up for interpretation, and I suspect in our disfavor. One of the key points is made by Cheryl Johnson - "The Justices have confused what nurses do as a routine part of their job with who the employer claims they are in the organizational hierarchy." WHO THE EMPLOYER CLAIMS THEY ARE IN THE ORGANIZATIONAL HIERARCHY! This might well be a question we start to ask every employer from the get go.
  6. by   rncountry
    It's going to be interesting to see what happens in Hawaii. It is a highly democratic state, as well as heavily unionized for nurses through the Hawaii Nurse Association from what I understand. I will bet that every facility there is watching this carefully.
  7. by   minurse
    Thought i'd share what our vp of nursing services had to say about this ruling in a memo dated June 5....."Several years ago the registered nurse staff at XXX Medical Center elected the UAW as their rep. The US supreme court recently resolved an issue concerning staff nurses and charge nurses affecting this election. In their decision, the court determined the NLRB was wrong in suggesting staff nurses and charge nurses to be one of the same. As a result of this court decision, the election result will soon be null and void. As such registered staff nurses will no longer be represented by the UAW.
    As many of you are aware, significant positive changes have been taking place within the nursing department over these years. Today, nursing at XXX Medical Center continues to be committed to working with you in a professional environment by recognizing your needs and by striving, with your support, to create a positive work environment for those we serve...."

    I get a whole "na na boo boo" tone from the memo and so do the other nurses I work with. The entire rest of the hospital is union.
  8. by   natalie
    Originally posted by minurse:
    <STRONG>Thought i'd share what our vp of nursing services had to say about this ruling in a memo dated June 5....."Several years ago the registered nurse staff at XXX Medical Center elected the UAW as their rep. The US supreme court recently resolved an issue concerning staff nurses and charge nurses affecting this election. In their decision, the court determined the NLRB was wrong in suggesting staff nurses and charge nurses to be one of the same. As a result of this court decision, the election result will soon be null and void. As such registered staff nurses will no longer be represented by the UAW.
    As many of you are aware, significant positive changes have been taking place within the nursing department over these years. Today, nursing at XXX Medical Center continues to be committed to working with you in a professional environment by recognizing your needs and by striving, with your support, to create a positive work environment for those we serve...."

    I get a whole "na na boo boo" tone from the memo and so do the other nurses I work with. The entire rest of the hospital is union.</STRONG>
    Whaaaaatttt? minurse, please keep us informed as to what this means for nurses at your hospital. It sounds incredible to me. Are you from Michigan or Minnesota? I'm stupefied and scared by the implications of that memo.
  9. by   rncountry
    minurse, I am in Michigan. PLEASE the name of the hospital! Even though this is a public forum, they cannot track you down and fire you for putting out there what they have done. If you feel uncomfortable with putting it in a public forum, please email me at activistrn@tm.net I will keep you confidential. I am putting together a packet to send to each of Michigans representatives and this should go into it. It is not going to take other places long to do this once they see it as successful, you know the healthcare community has a great grapevine.
    Thank you.
  10. by   Charles S. Smith, RN, MS
    Originally posted by rncountry:
    <STRONG>minurse, I am in Michigan. PLEASE the name of the hospital! Even though this is a public forum, they cannot track you down and fire you for putting out there what they have done. If you feel uncomfortable with putting it in a public forum, please email me at activistrn@tm.net I will keep you confidential. I am putting together a packet to send to each of Michigans representatives and this should go into it. It is not going to take other places long to do this once they see it as successful, you know the healthcare community has a great grapevine.
    Thank you.</STRONG>
    Please be careful about quoting directly anything from a hospital memo. These are considered internal documents and are covered under most hospital global confidentiality clauses...just check it out first before you go public with it....

    chas
  11. by   rncountry
    True Charles, but one does not need to quote verbatium from the memo. It is not my intent to do so. My point with this is with the supreme court ruling many hospitals and nursing homes may opt to go this route. Many nurses see unionization as the last hope for nurses. I on the other hand see a demise of unions for nurses and the need to prepare for that eventually. To me that means nurses understanding that they must think in a different manner to have any kind of voice in regards to our workplace. I am guessing here as to the hospital, but is it Detroit Regional Medical Center by any chance?

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Split decision: Nurses lose crucial ruling on union representation, but win right to