Carol Lemke, RN, left, and Shari Signer, RN, speak at a rally marking Nurses’ Week and calling for union representation for nurses and other health care workers. (Erik Gunn | Wisconsin Examiner)
In 1937 the Legislature passed the Wisconsin Employment Peace Act, which protected the right of workers to join unions, engage in collective bargaining and take appropriate action including the right to strike. One driver of the legislation was the increasing number of agriculture related strikes. Farmers and agricultural co-ops wanted a way to mediate disputes. In discussions to modify the legislation in 1939 legislators invited the AFL, the CIO and farmers groups to the deliberations.
On Thursday, Feb. 24 nurses and their supporters will gather outside the emergency entrance of the University Hospitals in Madison to ask that management voluntarily recognize their union, so that in concert with the hospital they can deal with staffing shortages and improve the quality of care for patients.
Should the hospital agree, the nurses will have finally achieved the rights their counterparts had back in 1937. If the hospital agrees to having nurses on its management committee so that they could share their knowledge with the administration and be informed about the financial and organizational thinking of the hospital, they will have almost reached parity with 1937. Another step to 1930s-era labor conditions would come if management recognized their right to strike.
On January 13 SEIU HealthCare Wisconsin presented over 1,500 union authorization cards to the University of Wisconsin Hospitals and Clinics, representing well over 50% of the hourly nurses employed by UWHC.
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After raising some questions as to the validity of some of the cards and denigrating the significance of the organizing drive, the hospital declined to recognize the union citing Wisconsin’s Act 10. Act 10 states clearly that the hospital is not compelled to recognize the union.
The legislative framework
Being compelled is one thing. Voluntary recognition is another. There is no procedure currently in Wisconsin state law for public sector workers to achieve union recognition.
Nor is there a statement preventing such recognitions. In 2011 Act 10 amended the Peace Act to specifically exclude the UW hospitals and clinics, previously covered by the Act, as employers, thereby ending the requirement that they bargain with the nurses’ union. But there is nothing that prevents voluntary recognition.
UW Health is governed by the UW Hospitals and Clinics Authority and partners with the UW School of Medicine and Public Health. There is a Board of Directors which governs the authority including the selection of the CEO. There are also two non-voting members appointed by the governor, one who represents professional employees and one who represents nonprofessional employees.
The composition of the 13-member board is determined by the political makeup of the state Senate. Three members are appointed by the governor with the advice and consent of the Senate. Three others come from the Board of Regents; the others are the chancellor of UW, chairperson of the UW medical school and the co-chairs of the legislative Joint Committee on Finance.
In other words, to the extent that Republicans control the state Senate there is little chance that anyone with union sympathies would get through the approval process.. Likewise there is no evidence whatsoever that any of the senior university appointees have any willingness to accept a union as a negotiating partner.
Even if all of Gov. Tony Evers’ appointees were to take office and even if they were strongly pro-union the political tasks to win a majority of this board are daunting at best.
Under these circumstances what can be done to bring the board to accept a union?
The nurses have a tremendous asset coming into this fight. They are the ones caring for patients, doing the work to provide high quality and compassionate care. They are the face of the hospital for many people. As such they enjoy a high public approval rating. Without nurses willing to work above and beyond the call of duty, the hospital would not be able to provide quality compassionate care at levels needed to serve the public.
How can the nurses make use of their attributes? What type of internal organization do nurses need for an intense, popularly supported and long-term fight?
The key to such a campaign is a strong, democratically guided local organizing committee. This committee develops its own leadership, steward structure, internal means of communication and ability to negotiate with management. Union staff guide and support the committee, provide expertise and encouragement and assist with the tremendous job of outreach to the political community and citizens in general. The committee gradually becomes the union, so when collective bargaining is achieved the nurses are in a position organizationally, politically and intellectually to move forward.
One important role of such a committee is to clearly understand the organization and financial structure of the hospital. Which departments generate the greatest income? Which departments are crucial for the overall functioning of the hospital? Which services provide the most support to the community? Knowing this allows the organizing committee to make strategic decisions as to where to place resources.
This is aside from a department by department map of union support.
The organizing committee’s relation with the union staff assigned to the project must be one where the committee increasingly guides the strategy and tactics. If this is not done then the anti-union forces will characterize whatever action is taken as coming from the outside and jeopardizing patient care.
To succeed, the nurses must plan for direct action. Direct action means many things but it must involve a collective effort to achieve a goal. That goal can be very limited but achievable.
The issue of patient care is built into the DNA of most nurses, so only the committee has the expertise to develop forms of direct action that can serve to 1) show the hospital that nurses are united; 2) show the community that actions by the nurses are not self-serving; but in support of patient care and 3) build the union by showing that collective action can accomplish something. From there, momentum will grow.
It will be a necessity to develop a full court press beyond lobbying but based on an evaluation and mobilization of all potential supporters. To a degree the nurses have already moved aggressively on this front, with supporters in the state Legislature, city council and county board. But the undemocratic nature of the governing body of the hospital tends to immunize it from community pressure — as it was designed to do.
City, county and state elected officials offered resolutions in support of organizing. There may be other leverage points to encourage the hospital to move towards recognition. At the national level maybe nurses and/or community supporters should approach the Joint Commission, the nation’s oldest and largest health care accreditor, which accredits about 22,000 hospitals. Perhaps physicians concerned about patient care, or community advocacy groups can reach out to the Joint Commission to highlight issues of care that derive from the refusal of management to listen to nurses. An evaluation of current scheduling crisis and its causes might be one area of interest to the Commission.
Maybe the next time the Commission schedules a visit it might be possible to speak with them. Maybe at the state level, Democrats can find ways to intervene in health care related bills by inserting standards of care, pay and the role of nurses in decision-making in legislation as it moves through the process. At a minimum, for every appointee of the Board of Regents or the hospital board or any agency that deals with the hospital and clinics, the nurses’ supporters should demand that the nominee take a stand for voluntary recognition. Maybe the union can arrange a walk through of the hospital with a key political supporter to point out the needs of nurses. I think it would be hard for UW to refuse admittance to a state legislator especially when the Joint Commission is present.
UW employees on the hospital board include the dean of the medical school, a chairman of a department and a faculty member. They should be approached directly and asked to support collective bargaining. The ability of the nurses to bargain will be aided immensely if a significant number of medical school faculty have already indicated that they support the nurses.
It’s time to develop a campaign in the medical school amongst the faculty and academic staff in support of the voluntary recognition initiative. Organizations like Physicians for Social Responsibility and unions including WEAC and Wisconsin AFL-CIO could also be enlisted to do political outreach and offer other types of support.
The legal question
There is one other wild card in this mix. Although the hospital claims that it is a public entity and hence subject to state law, it acts more and more like a private corporation, partnering with out-of-state organizations and hospitals. The issue of whether it is really a public nonprofit entity has not been litigated. It is possible that an organization that looks like a duck quacks like a duck and swims like a duck is actually a duck, and thus subject to the National Labor Relations Board.
In that case if the union wins a majority in a recognition vote the hospital is compelled to bargain. It is important to note that from the formation of the Public Authority, the status of employees has always been a question. Coverage of the nurses by the Wisconsin Labor Peace Act was the solution in the 1930s. But the status of the employees was never litigated. Now may be the time.
No matter what the outcome of such litigation, no union has ever been successful in the face of the hostility shown by entities like the Hospitals and Clinics without a ground game controlled by and enthusiastically supported by an informed membership.
The current union drive has the greatest chance of success if it is built on a strong committee capable of planning strategy and making decisions.If it employs organizing on the ground, political action and a legal strategy, it has a fighting chance to win.
Frank Emspak is professor emeritus of the School for Workers, University of Wisconsin. Prior to coming to the UW, he served as Director of the MA. Center for Applied Technology. His union experience includes serving on the executive boards and negotiating committee of UE Local 271 and IUE local 201.
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