NEW YORK NURSE: June 2011
by Mark Genovese
NYSNA has won a pair of important decisions before the New York City Board of Collective Bargaining that reaffirm nurses’ right to information in disciplinary proceedings and require the city to bargain changes to nurses’ uniforms.
“These cases set a precedent for all city employees,” said Lorraine Seidel, director of NYSNA’s Economic & General Welfare program. “They reaffirm the fundamental right of city nurses to have a say in the conditions under which they work, and that the city cannot act unilaterally and arbitrarily — that it must be prepared to present the facts and follow the law.”
In a decision issued on April 28, 2011, the board said the city and its Human Resources Administration (HRA) violated city collective bargaining law when they repeatedly refused to provide information NYSNA requested in order to represent members during disciplinary proceedings. The city and HRA are appealing the board’s ruling.
The case arose from misconduct charges filed by against two RNs at HRA’s Brooklyn office in October 2009. The charges indicated that the RNs were subject to termination. HRA alleged that they falsified their time records, were absent from work without proper authorization, and lied to their supervisors. In addition, the agency alleged that one of the RNs was wrongly compensated for days she didn’t work.
As part of her investigation, NYSNA Nursing Representative Ilene Sussman sent letters to HRA in early December 2009 requesting its documentation. HRA didn’t comply. When Sussman reiterated her request at the grievance hearing, agency officials said they didn’t have the information. She followed up afterward in writing. This time HRA didn’t even respond.
Sussman then filed improper practice charges against the city and HRA, contending their failure to provide the information was a violation of the city’s collective bargaining law. The charge asked the board to order the city and HRA to immediately provide the documentation.
The city and HRA claimed they had no duty to provide information in a disciplinary proceeding. They relied on a recent court case, Pfau v. PERB, which other employers have also been trying to use as a basis for limiting the rights of public sector unions to information. NYSNA argued that the Pfau case did not provide a basis for denying its information requests.
The board rejected the argument by the city and HRA that the Pfau case eliminated a union’s right to information in contractual disciplinary proceedings. The board said the city and HRA had a duty to provide most of the information requested, determining this information was “relevant to and reasonably necessary for administering the contract at issue.” It said that refusing NYSNA’s request was “unjustified and constituted an improper practice.”
The board added that: “the duty to bargain in good faith includes the obligation to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.”
The board then ordered the city and HRA to produce within 60 days the requested agency policies, time records alleged to support the disciplinary charges, witness statements in the employer’s possession or control, and specific patient records. In keeping with its prior rulings, the board found that the employer had no duty to create documents explaining its decisions and denied NYSNA’s request for statements of how the two RNs violated policies. The appeal of the ruling by the city and HRA is set to be heard in state court in August 2011.
In a second ruling, on May 6, 2011, the board said that the New York City Health and Hospitals Corporation (HHC) cannot require changes in RNs’ uniforms without negotiating the matter with their union representative.
A provision for a uniform allowance was a part of the city nurses’ contract from 1972 to 2006. The allowance was eliminated after that, its value included in RNs’ wages. HHC has never had specifications for RNs’ uniforms, other than saying they must appear “neat and professional.” But in September 2010, RNs at Jacobi Medical Center and North Central Bronx Hospital were sent letters that color-coded uniforms would be required starting in January 2011.
Leon Bell, NYSNA’s HHC labor representative at the time, called for a meeting with the city’s Office of Labor Relations to discuss the city’s obligation to bargain. At that meeting, and in writing afterward, the office denied it had any such responsibility. So, Bell filed an improper practice charge.
He said besides the fact that this requirement violated the city’s collective bargaining law, it would have a negative financial impact on the 1,114 RNs at the two facilities. For most RNs, this change would render their current scrubs and shoes useless. With an average nurse needing five sets of scrubs and two pairs of shoes, it could cost between $285 and $510 to comply with the new policy.
Although the board acknowledged that the city had managerial authority to determine appearance of employee uniforms, it agreed with NYSNA that the uniform allowance is a mandatory subject of bargaining and that this new policy “would create an economic issue that didn’t exist under the old policy.” It required HHC to bargain with NYSNA over the change.
“A great deal of perseverance on the part of members and staff went into winning both of these decisions,” said Lorraine Seidel, NYSNA’s Economic & General Welfare program director. “This is a demonstration of how NYSNA will not allow its nurses to be taken advantage of and will fight to protect its members’ rights.”