NEW YORK NURSE: July/August 2011
by Mark Genovese
A June 14 ruling by the U.S. Court of Appeals, District of Columbia Circuit, has given NYSNA the right to the crucial information it needs to protect the integrity of its bargaining unit at New York Presbyterian Hospital.
The case involves 200 nurse practitioners who work at the Manhattan medical center, 100 of whom are represented by NYSNA. The case was filed seven years ago, but has been subject to lengthy appeals and legal maneuvering at various levels and regions of jurisdiction by the hospital.
“This case is about the preservation of our contract,” said Roberta Murphy, associate director for NYSNA’s Economic and General Welfare program, who was the nursing representative at Presbyterian when the case was originally filed. “The contract is very clear about who performs bargaining unit work.”
According to the contract: “…registered nurses who are outside of the bargaining unit will not routinely or consistently perform those clinical duties normally performed by members of this bargaining unit.”
In May 2004, NYSNA representatives began to suspect that non-union nurse practitioners were doing bargaining unit work and filed a grievance over the matter. The hospital denied the grievance in May 2005, claiming the nurse practitioners were actually employed by Columbia University, which is affiliated with the hospital. It contended the nurse practitioners didn’t fall within the hospital’s “span of control” nor were they governed by the hospital’s policies and procedures.
NYSNA took the matter to arbitration and filed an unfair labor practice charge with the National Labor Relations Board (NLRB) in August 2006, asserting the hospital and Columbia were “a single employer or alter egos of one another.” It added that the corporation was preventing the non-union nurse practitioners from receiving the benefits of working under the same terms and conditions as the nurse practitioners covered by the NYSNA contract.
Murphy made several requests for information concerning the employment of the non-union nurse practitioners. Subpoenas were issued directing the hospital to produce the documents at an arbitration hearing. Although the hospital did provide some information, NYSNA determined it was incomplete. Murphy filed a second unfair labor practice charge over the employer’s failure to provide the information.
After a four-day hearing in December 2008, an administrative law judge decided in favor of NYSNA, ordering the hospital to provide the information. An NLRB panel affirmed the decision in April 2009. But this ruling was nullified by a federal appeals court because the NLRB panel had only two members, instead of the required three. A full three-member board reaffirmed the ruling in August 2010.
But, the case still wasn’t over. The Washington-based board could not issue an order of enforcement. Such an order could only be issued in Manhattan, the judicial district where the unfair practice occurred. This gave the hospital an opportunity to appeal again, which it did.
In the June 14, 2011 ruling, the federal appeals court said the hospital’s claim that it already provided all necessary information was disproven by the record of case, which indicated that the hospital had collected data that it didn’t supply to NYSNA. The court confirmed that employers have a duty under labor law to supply a union with information that will enable it to negotiate effectively and represent its members. This duty extends to data requested to “properly administer and police a collective bargaining agreement.”
The ruling said, “there can be little dispute that NYSNA’s information request is relevant to the question whether non-bargaining unit nurse practitioners are performing bargaining unit work.”
“Large institutions like Presbyterian think that they can ignore their contracts and enter into agreements with affiliates, such as Columbia University, as they see fit,” Murphy said. “NYSNA refuses to permit these tactics, and will use all legal measures at our disposal. As a union, we have a legal right to this information to protect our members. As powerful as Presbyterian thinks it is, it is not above the law.”
NYSNA is now pursuing the original case. As of press time, the hospital had yet to comply with the order.