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[black small square] Is there any way, legally, that a nurse can refuse to belong to a union and still maintain his or her employment if the union is legally "voted in" to represent the professional nurses? - CF-Ohio
Congress passed The National Labor Relations Act (NLRA) to govern private employers and employees and unionization. It also established the National Labor Relations Board (NLRB) to administer and enforce the Act. Various amendments to the Act broadened its coverage to healthcare workers in private not-for-profit healthcare facilities and required a 10-day notice to the healthcare facility before a strike, picket line, or other concerned activity takes place among other protections. For public-sector employers and employees, the Civil Service Reform Act of 1978 and various state laws regulate unionization in facilities such as Veterans Administration Hospitals and state governmental healthcare facilities.
Section 7 of the NLRA identifies the employee's rights vis-a-vis the employer and the union. Employees can (1) join, form, or assist a labor organization; (2) bargain collectively through a representative of their own choice; (3) participate in other concerted activity for the purposes of collective bargaining and mutual aid; and (4) refrain from any and all such activities.
Once a union is recognized as the collective bargaining agent after an election is held, the union then bargains with the employer concerning the bargaining agreement, which will govern employees' wages, hours, and other conditions of employment. The union may also bargain to place into the bargaining agreement a "union-security clause" that protects the union's continued existence as the bargaining unit. There are several such clauses that are possible. One is a "full union shop" wherein the employer may hire a nonunion employee but all employees must become a union member-through the payment of dues only, if that is the employee's choice-within a certain time period (eg, 30 days). A "closed shop" is defined as a clause requiring the employer to hire only members of a particular union.
Modified union shop clauses are allowed in healthcare facilities if certain conditions are met. One of the most important is that the only union membership that can be required of employees by the union is their financial support through the payment of dues and fees ("agency shop"). Full or partial participation in the union cannot be required. For the employee, the payment of those dues and fees mandates the union to treat the employee fairly if he or she does not fulfill his or her obligations of paying union dues and fees. The nonparticipating employee in a modified union shop also benefits from whatever wage, hour, and terms and conditions of employment the union has been able to negotiate with the employer.
Determining whether the union voted in as the bargaining agent has a bargaining agreement that includes a union-security clause is always a good place to begin to evaluate one's options concerning membership or nonmembership in the union in one's workplace.
[black small square] Are all professional nurses "legally" held to the standards of practice as written and published by the American Nurses Association? - BW-Georgia
Standards of (nursing) practice are authoritative statements developed by professional nursing associations. They detail the responsibilities, values, and priorities for which nursing practitioners are accountable and must answer to both legally and ethically. Standards provide direction for professional nursing practice and help with the evaluation of that practice by being described in measurable terms.
Standards of nursing practice can apply to either general nursing practice or specialty nursing practice. As a result, many professional nursing associations develop standards pertaining to a specific area of nursing practice. The American Nurses Association (ANA) is one of the professional nursing associations that has developed and published such standards. Because the ANA has been and is regarded as the "official" professional association for all professional nurses, its general standards of practice and those in specialty areas of nursing are important for describing a competent level of practice in those areas. Other associations that have developed standards of practice include the American College of Nurse Midwives, the American Association of School Nurses, and the American Association of Perioperative Nurses.
Standards of practice are used in a variety of ways. First and foremost, as discussed, they provide guidance in the clinical setting for the provision of competence and excellent patient care. In the law, they are used in professional negligence actions wherein a nurse is a named defendant to establish the standard of practice in a particular situation. When professional negligence is alleged against a nurse, the overall standard of care for the nurse is what other ordinary, reasonable, and prudent nurses would have done in the same or similar situation in the same or similar locale. A nurse expert witness, testifying to the standard of care, is how the standard of care is most often established. The expert witness establishes the standard of care by using accepted standards of practice in addition to other sources. As a result, practicing in accordance with those accepted standards of practice is essential to provide good patient care and also to defend oneself in a lawsuit by being aware of them and by practicing in accordance with those standards.
Third, boards of nursing use standards of practice to evaluate allegations of violations of the state nursing practice act. The standards of practice may be incorporated in the act's rules that refer to or reflect the standards and/or may be used as evidence when the board attempts to prove its case against the nurse licensee.
Standards of practice, then, are vitally important to the practicing nurse. Keeping informed and up-to-date about the standards that affect the nurse's practice and providing patient care consistent with them is a professional and legal obligation of all nurses.
[black small square] I am truly concerned about peer employee evaluations. In our organization staff nurses participate in the annual evaluation of each other by particular units. All nurses are invited to provide input about the nurse being evaluated, and the managers are to document this input on the nurse's performance appraisal form. If staff nurses are evaluating performance of each other, are they not acting as "supervisors" and doesn't this make them exempt from joining a union? - TG-New York
The issue of who is and who is not a supervisor for purposes of membership in a collective bargaining unit has been a controversial and complicated one, especially in relation to healthcare generally and to nurses specifically. Although the history of this issue is well beyond the scope of this column, the issue still creates confusion today and has not been resolutely resolved. Even so, some guidance can be obtained from the statue, the National Labor Relations Act (NLRA), and the decisions of the National Labor Relations Board (NLRB).
Section 2(11) of the NLRA defines a "supervisor" as one who has the authority to grant wage increases, settle grievances, hire and fire employees, assign work, or make recommendations concerning any of those areas. A person performing these roles is excluded from union membership because he or she is making decisions "in the interest of the employer." In healthcare, the employer's interest is patient care. As a result, any person making decisions concerning patient care is a supervisor. This interpretation of the supervisor exclusion was supported in the 1994 US Supreme Court decision NLRB v. Health Care And Retirement Corp. of America.
The situation you raise may or may not result in the employees' being considered as a supervisor under the NLRA. One of the issues to consider is how much weight, if any, is given to the peer evaluation in the overall evaluation of a staff nurse. Does the peer input result in hiring, firing, or other changes in the evaluated person's employment status? Or, are they simply providing input to the "identified" nurse manager's (supervisor's) decision who retains the ultimate control to use the input given to him or her when making hiring, firing, or other employment decisions?
Seeking clarification of the staff nurses' role in this process would be helpful. That clarification can only come from the NLRB, however. If the facility is already unionized, the union or the employer can seek such clarification through the procedures established in the NLRA.
[black small square] When I receive a call asking for a reference for a former nurse employee, can I tell the caller if a nurse has been terminated and the reason for the termination? Can the nurse sue me if I disclose the information? And finally, is there any duty to tell a reference caller if a nurse has been terminated? - VS-North Carolina
Employment references are best handled through a standard policy adopted and used by the facility that is developed with the input from the facility's legal counsel and human resource department. Because there may be liability for the facility and the person providing a reference if the information provided is untrue, not consistent with any state laws governing employment references, or an invasion of privacy or breach of confidentiality, the policies developed should protect all of the parties involved. For example, many facilities have adopted policies that require references be done through the human resource department only and that only dates of employment and position held are provided. Once a policy is developed and adopted, it should be included in the employee handbook so that all employees are required to abide by its parameters.
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