Agency gains advantage in nurses’ union contract

But collective bargaining is never easy for directors

When it comes to collective bargaining between health care unions and hospital-based home health agencies, the National Labor Relations Board (NLRB) historically has put special emphasis on the word "collective."

That’s because of a legal term known as the Acute Care Rule. It allows unions to organize both hospital nurses and home care nurses into one collective bargaining unit, even though their professional responsibilities are different.

But in a ruling on the case involving Memorial Health Alliance in Mt. Holly, NJ, the NLRB sided with the health system. The RNs won their union contract in August, but the health system won the right to keep the home care nurses and hospital nurses as separate bargaining units during contract negotiations.

Memorial Health Alliance is the umbrella organization of a system that includes Memorial Hospital of Burlington County, a 366-bed private not-for-profit facility in western New Jersey, and its affiliated home health agency, Community Nursing Service (CNS). When the Health Professionals and Allied Employees (HPAE) union petitioned for an election to organize workers in 1996, the HPAE sought to combine the hospital’s 500 nurses and the 100 home health RNs into a single bargaining unit.

Though not precedent-setting, the ruling carries instructional weight for hospital-based home care directors who may find themselves caught up in the current trend toward unionizing health care workers.

Hospital home health is an easy target

"The unions are becoming aggressive in recruiting members because of all the changes in health care," says Loretta Spoltore, RN, MS, the community care and operations vice president with Memorial Health Alliance. "It’s a growing trend in this region."

Spoltore reports that between April 1996 and April 1997, three other health facilities have been unionized, each with a different union. "The West Jersey Health System was the first [in its area], but it’s not settled yet. There are still some questions from both sides surrounding the vote. The Red Cross in Philadelphia got a new union, but it was only for part of the nursing staff, and so did Episcopal Hospital in Philadelphia."

Like Memorial Health Alliance, these systems were not unionized before.

"I’ve been in this region for three years," she says, "and up until that April [1996] vote, I had not heard about unions much. Then it seems like it was one health system after another being unionized."

John C. Gilliland II, a Cincinnati-area home care attorney with extensive labor relations experience, also sees a trend in union organizing among nurses. "The growth of unionization in health care is a trend," he says. "In home care it’s newer. There were a few last year, but for hospitals, this trend started quite a long time ago."

Hospital-based providers, says Spoltore, are tempting targets for labor unions that see a chance to organize both the hospital staff and home care nurses in one move. The danger for home care directors and nurses lies in the fact that home care differs so much from hospital nursing. Personnel polices that work for the hospital usually won’t work in home care.

"Separating home care nurses from floor nurses certainly makes it [bargaining] easier," Gilliland says. "And from a management perspective, separate units makes sense. Their wages, hours, and terms of conditions of employment are all very different."

Echoing the familiar complaint of many hospital-based home care directors, Gilliland says, "Hospitals don’t seem to understand home care. Hospital-based agencies need separate personnel policies."

Memorial Health Alliance nurses eventually elected 12 members to the negotiating team, 10 from the hospital and two from home health.

In the Memorial Health Alliance case, the NLRB did not invoke the Acute Care Rule because the home health agency is four miles away from the hospital, says Joel Schochet, an attorney with the Philadelphia law offices of Mager, Liebenberg & White, who argued the case for the health system. "The CNS nurses and the hospital nurses do not share a community of interest," he says.

The hearing before the NLRB took place in the Fourth Region office in Philadelphia last fall, following the nurses’ vote to form a union. The NLRB resolved the dispute over separate bargaining units in December. This cleared the way for contract negotiations to begin in February of 1997. The contract was approved by a vote of union members this past August.

The ruling reads in part:

"Absent extraordinary circumstances, stipulation or contrary bargaining history, a combination of nurses at an acute care hospital with nurses at completely separate nonacute care facilities is inappropriate under the Rule (Acute Care Rule) . . . the record evidence fails to establish a cognizable basis for commingling the memorial Hospital RNs and the RNs at CNS."1

Schochet notes that the union did not appeal the NLRB decision.

Searching for job security

The current instability in the health care industry seems to be the cause for the rush to unions, say both Spoltore and Gilliland, although the official line put out by the HPAE was that Memorial Hospital and its home health agency were "cutting corners on staffing to make a profit."

The HPAE also talked about quality of care, says Spoltore, "but all they really cared about was getting a raise. There were other issues, but the union was most persistent with economic issues."

The nurses’ pay increase brought them up to market, says Spoltore. Hospital nurses now are paid within a range of $17.25-$23.60 an hour, while home care nurses will receive an hourly rate of between $16.50 and $22.50. Rates are based on experience, Spoltore says.

Productivity was another bargaining issue. CNS’ home care nurses, who make about 145,000 visits annually, wanted more say in how productivity was determined, Spoltore says. "They felt they didn’t have as much say as they had in the past."

So the home health nurses developed a way to measure productivity using a relative unit of 1 or 2 that was applied to visits. They received more credit for longer visits, Spoltore explains.

"All visits are not created equal. They came to an agreement on minimum standards based on a unit as opposed to visit volume alone. The nurses have determined how productivity is measured. It’s actually a very good standard."

Spoltore says the nurses’ committee and management, which she represented, met every other week in the beginning of negotiations. Then the groups met four or five times during the last week to negotiate the final details. Throughout the negotiations, the agency carried out its home care duties to its patients, she says.

After the dust settled, "the only change was in salary," Spoltore says. "The benefits were untouched."

There was some disagreement over weekend staffing, but nurses agreed to volunteer or be assigned on a rotating basis to cover patients, Spoltore says, "and this ended up being about where it was prior to bargaining."

Spoltore advises any hospital-based agency to keep lines of communication open between staff and management to prevent confusion. But she cautions that communication must work two ways. "That’s key. That’s what got us into this position. Health care is undergoing sweeping changes, in reimbursement, especially. Within the next year, things will be very different.

"We’re all under pressure to provide care and operate a business. Sometimes it is difficult for people to adjust to change. Communicating and explaining changes will help."

But communication must be genuine, she says. "You have to assure your staff you are approachable." And truly listen to staff, Spoltore adds. "Don’t just pay lip service to their concerns."

In the end, the agency, hospital, and nurses all agreed the union contract was fair. Says Spoltore, "I believe we have a good and fair agreement for the staff and management. That was our goal throughout this. We love our staff. We think the services they provide can be beaten by none."

The present union contract expires in three years.


1. Memorial Hospital of Burlington County and Community Nursing Services, Employers, and Hospital Professionals and Allied Employees of New Jersey, AFT/AFL-CIO, Petitioner; Case 4-RC-18890.