Labor unions in the healthcare industry have been much in the news of late, particularly the emergence of large and well-funded nursing unions. There is a sense of urgency among nursing unions to organize nurses in large numbers, as well as an increased push to organize other groups of healthcare workers. What is the impact of this increased organizing activity within the healthcare industry? Beyond the obvious answer of unions' desire to rebuild ailing labor unions and increase dues revenue, in order to fully answer these questions, it is important to understand both the past and the current labor relations landscape. This article will provide an overview of the application of labor law in the healthcare industry and a practical discussion of the changes businesses will face if their workforce becomes unionized.
I. Labor Relations 101
Traditionally, people think of unions as the champions of the blue-collar worker in the manufacturing setting. The service industry has outgrown the manufacturing industry, which means the focus of union organizing activity has shifted as well.
For the healthcare industry, the origin of this "shift" dates back to 1967 when the National Labor Relations Board (NLRB) first recognized the right of hospital workers to join unions and participate in collective bargaining with their employers.1 In 1974, Congress amended the National Labor Relations Act (NLRA) to cover both for-profit and nonprofit healthcare institutions under the provisions and restrictions of the NLRA.2
The NLRA gives employees certain rights including: (1) the right to form, join or assist labor organizations (i.e. unions); (2) the right to collective bargaining; (3) the right to engage in concerted activity with their co-workers for their mutual benefit or protection; and (4) the right to refrain from participating in union activities.3 These rights, combined with the fact that hospitals are subject to the NLRA, make it possible for healthcare workers to join unions.
A. Appropriate Bargaining Units
A bargaining unit is defined as "a grouping of two or more employees aggregated for the assertion of organizational rights or for collective bargaining."4 Unions may become certified when a majority of workers in the appropriate bargaining unit seek union representation. In determining what is an appropriate bargaining unit, the NLRB considers similarity of skills, work hours, wages and working conditions as well as the desires of the employees, bargaining history and the extent of union organization.5
In the healthcare industry, the appropriate bargaining unit is often a topic for debate. In acute care hospitals, there are, with rare exceptions, only eight presumptively appropriate bargaining units: (1) registered nurses; (2) physicians; (3) all professionals except for registered nurses and physicians; (4) technical employees; (5) skilled maintenance employees; (6) business office clerical employees; (7) guards; (8) all nonprofessional employees, except for technical employees, skilled maintenance employees, business office clerical employees and guards.6 In all other healthcare facilities, the NLRB considers the "community of interest" and determines appropriate bargaining units on a case-by-case basis.7 The recognition of these distinct, separate units in the hospital has made it easier for groups of employees to organize. For example, if the NLRB determined that a broader group of employees still has a sufficient "community of interest" to constitute an appropriate unit, then nurses would arguably have a more difficult time generating the requisite support for a union when lower paid, less skilled employees do not have the same concerns or interests as the nurses.
In Boston Medical Center Corp.8, a significant decision in this industry that directly impacts the determination of an appropriate bargaining unit, the NLRB overruled its prior decisions and held that …