One Step Forward, Then a Tousand Steps Backward

In 1980, a new area-wide contract for RCIU (UFCW) organized nursing homes in the Twin Cities immediately increased the lowest rate of pay from $3.60 to $4.50, then to $4.75 the next year, and to $5.00 at the beginning of the 3rd year that this contract was in force.

Just six months after the 1980 contract went into effect, some employers invoked their contractual right to back out of the wage agreement, and announced that they would institute a 10% pay cut. But the union forced them to back down. The contract as written remained in force until it expired in 1983.

In 1983, the leadership of Local 789 began to push for the adoption of a one-at-a-time bargaining strategy. By 1992, union members at each and every nursing home had their own contract. Even the owners of more than one nursing home under contract with the union local had a separate contract with union members at each of their nursing homes.

At that time, Local 789 expanded its nursing home division through an agreement worked out between the Service Employees International Union and the United Food and Commercial Workers Union. The SEIU absorbed the UFCW nursing home division in Minneapolis, and UFCW local 789 gained a few nursing homes in St. Paul, MN.

Most of local 789's nursing home division covered by the area-wide contract settled in 1980 opted for separate contracts by 1984. SEIU organized nursing homes absorbed by UFCW local 789 had already opted for separate contracts with restructured pay scales while in the SEIU.

The one-at-a-time strategy accompanied a restructuring of wages. Workers in most job classifications had a common pay scale until they bargained for separate contracts. Initially, the pay for Nursing Assistants went up a little, and the pay went down a lot for workers in the kitchen, laundry, and housekeeping departments.

For nursing assistants, the bottom of the scale in 1995 was about $7.00 per hour; the top wage about $10.50 per hour. If the lowest rate of pay under the area-wide contract in 1982, $5.00 per hour, were adjusted to offset cost-of-living increases, it would have been close to $10.00 per hour by 1996.

The restructuring of pay scales not only produced a huge differential in pay between and within job classifications, but also created a large constituency of union members who tend to support further changes along these lines. At a typical unionized nursing home, more than 70% of union members are nursing assistants, a large minority of nursing assistants are at the top of their pay scale, and about 20-25% of all union members are in lower-paying job classifications.

During the past year and a half, workers at a couple of nursing homes owned by Beverly Enterprises and organized by the Service Employees International Union went on strike, provoked by the company's final offer on wages. The pay scale proposed by the company involved a substantial pay hike at the bottom of the scale, and cut wages at the top of the scale.

It was possible to find enough permanent replacements willing to start at the bottom of the new pay scale to break these strikes. The bottom of the union scale has been so low that nursing home owners have had to contend with a shortage of persons who can be hired and retained as nursing assistants who start at the bottom of the union scale.

The "one-at-a-time" bargaining strategy has served to isolate those who oppose the kind of wage restructuring that the union's bureaucratic misleadership has bargained for. Of course, workers slated to take a cut in pay tend to oppose the wage restructuring contained in separate contract offers, and many nursing assistants can be convinced that the union should reject such contract offers.

As a general rule, preference is given to white job applicants in hiring for relatively high-wage jobs, and preference is given to black job applicants for some of the low-wage jobs. It is common knowledge that, where a sufficiently large pool of white job applicants exists to fill all of the nursing assistant jobs at a given nursing home, and few or no black people reside in the immediate vicinity, nearly all of the nursing assistant jobs tend to be filled by whites. If a few black job applicants must be hired to minimally comply with laws against racial discrimination, preference is given to black people who are not African-Americans.

I don't believe it was a coincidence that most Local 789 members covered by the master nursing home contract in 1984, who settled for a 10% pay cut at the bottom of their pay scale, were employed at inner-city nursing homes. There, nursing assistants and workers in most other job classifications kept a common pay scale. It happened that a large proportion of nursing assistants at these facilities were African-Americans, who had almost no chance of getting a job where pay rates for nursing assistants were going up.

I suspect that the sort of wage restructuring that was going on at nursing homes with separate contracts had some appeal to many nursing assistants, but not to those who were slated to take deep pay cuts. The employers, with a little help from the union local's officers, had the opportunity to make this situation work to their advantage at the bargaining table.

After 1977, I had only one opportunity to participate in a union membership meeting where I could present an alternative to the course set by the union officialdom. This happened in 1985, during my probationary period as a new hire at a large nursing home in Minneapolis organized by the Service Employees International Union.

At this nursing home, the bottom of the pay scale for nursing assistants was about $5.50 per hour and the top of the pay scale was over $8.00 per hour. The bottom of the pay scales for workers in the housekeeping department, the kitchen and the laundry was under $4.00 per hour.

There were more than 300 union members at this facility. To my knowledge, this nursing home employed only one African- American as a nursing assistant, and this person was very near the top of the seniority list. On the other hand, a large proportion of workers employed in the kitchen were African-Americans.

At a meeting which closed with the election of a bargaining committee, I proposed a bargaining stance and strategy that was narrowly voted down. About 75 union members attended this meeting. A vote by show of hands was taken twice because the first time there was not a vote count or a clear majority for or against my proposal. Most of the members at this meeting also endorsed a proposal to appoint me as an alternate delegate, as soon as I completed my probationary period and formally joined the union.

What I proposed was a directive to the bargaining committee to advance several demands, to publicize these demands, and to seek support from organizations with constituents who might endorse some or all of these demands. These demands included: a common pay scale for nursing assistants and for workers in job classifications with a lower wage rate at the bottom of their scale, which would involve a huge pay hike for about 25% of the membership in order to bring their wages to the same level as the nursing assistants; no new steps or pay increase at any step above the starting rate on any pay scale; minimum levels of staffing for nursing assistants equal to or greater than Rule 49 minimums; and a requirement that the employer give preference to African-American job applicants in hiring so that African-Americans would quickly cease to be under-represented in any department.

In addition to outlining demands that the bargaining committee should adopt, I proposed that we take some steps toward collective bargaining on an industry-wide basis. We could propose some initial steps in this direction to bargaining committees which represent workers at facilities organized by the SEIU, and to other unions. The essence of our bargaining strategy would be to lay the ground-work for a strike to achieve our objectives at the bargaining table.

I wasn't surprised that the motion to approve my directives to the bargaining committee was defeated. However, it was encouraging to see that this motion was defeated by a very narrow margin (2 or 3 votes). Of those who attended this meeting, about 90% were white, at least 80% were nursing assistants. Because this meeting was scheduled during the afternoon shift, nursing assistants near the top of the pay scale were better represented than nursing assistants near the bottom of the pay scale.

But nursing home owners and their government regulators dispute the idea that dramatic increases in the rate of pressure sore acquisition, which had been regarded as 99% preventable, and other health problems at nursing homes is the consequence of a shortage of care-givers.

However, a common complaint of nursing assistants is that their workload has increased beyond the point where it is possible to do their jobs properly. The less time that a nursing assistant can budget for the care given to each and every resident, the less they can do for each and every resident.

These cuts were driven by "health care reform" legislation sponsored by Bill Clinton and the Democratic Party leadership in Congress, which sailed through Congress during the first 90 days of the new Democratic Party administration. This legislation included the biggest cuts ever in funding for medicare and medicaid. Clinton sold these cuts as part of a package to include some sort of health insurance program to be funded by the money taken away from medicare and medicaid. But the new programs never materialized.

Since 1985, the drive to cut hours for nursing personnel in Minnesota nursing homes has been facilitated by changes in licensing requirements for the operation of nursing homes. Rule 49, the set of regulations in place prior to 1985, was replaced by Rule 50.

Rule 49 required nursing home owners to provide a minimum of 2.5 to 3.2 hours of direct nursing care per 24 hours for residents who require skilled nursing care, depending on their classification as "Skilled I" or "Skilled II." If nursing assistants do virtually all of the basic nursing care, which is usually the case, only the productive hours worked by nursing assistants are counted as hours of direct nursing care.

Under Rule 49, residents of nursing homes and "board and care" facilities who were not skilled patients were classified as "intermediate." This classification was generally reserved for residents who require only routine monitoring of their health status, and do not require assistance with activities of daily living such as dressing, eating, grooming, hygiene, mobility, toileting, etc. The minimum requirement for hours worked by nursing personnel on an intermediate level nursing unit was only about 1 hour per resident per day.

Currently, Minnesota's Office of Health Facility Complaints will not take action against a nursing home owner for short staffing on the basis of staffing patterns alone, unless the number of hours scheduled for direct nursing care falls below 0.95 hours per patient in a 24 hour period, regardless of the level of care.

Rule 50 also established a "case mix" reimbursement system that determines how much a nursing home owner can charge for nursing home care. Eleven case mix categories (A-K) are used to determine the maximum hours of direct care that nursing home residents get in a 24 hour period.

Each case mix category has an assigned coefficient, a number plugged into a formula to determine the maximum hours of direct nursing care a nursing home owner can bill for. If the case mix coefficient is multiplied by a factor of 1, you would get a number that appears to come fairly close to the hours of direct nursing care minimally required under Rule 49.

However, the criteria used to classify patients into one of 11 case mix categories tends to result in a case mix coefficient that is lower than the minimum hours of direct care required under Rule 49. For example, residents who meet the criteria to be assigned case mix code "A" are budgeted for less than 1 hour of care per 24 hours. Many of these residents would be classified as "Skilled I" patients under Rule 49. The scheme of classification and case mix co-efficients were tested to assure that the new system would result in a cut in funding for direct patient care of about 10%, without using a multiplier of less than 1 to determine the maximum number of billable hours.

Since the introduction of the case mix system, the billable hours of direct nursing care for residents in every case mix category has been falling. Rather than multiplying the case mix coefficient by one to determine the billable hours of care, the case mix coefficient is multiplied by an ever-smaller fraction of one.

Nursing home owners used Bill Pearson's open letter and the forum given to them by local 789 as a device to squeeze a little more money out of the Minnesota legislature for themselves. But the extra money that Bill Pearson helped the nursing home owners get will not trickle down to union members. No matter how much money the legislature allocates to nursing homes, there is never enough to upgrade conditions of employment for nursing home workers.

Nursing home workers shouldn't be too concerned that if they force the nursing home industry to upgrade their conditions of employment through mass action, they might deprive nursing home owners of their right to make a "fair profit." The legislature can be trusted to come up with enough money to allow nursing home owners to make a fair profit.

In Minnesota, about half the nursing home beds are at so-called non-profit nursing homes. The non-profits reportedly spend more on their nursing home operations than is typical for a for-profit nursing home with as many beds. The non-profit nursing homes have also generated enough surplus revenues to finance big expansions, and start-up costs for other business ventures.

A shortage of nurses during the 1980s created a situation where unorganized nurses had some power to set limits on their employers ability to make demands on them. The presence of a union at many nursing homes where nurses are not organized also provided nurses a limited degree of protection from retaliation for refusing to allow their rights to be violated.

But licensed nurses face a much different situation today. In 1989 and 1990, enrollment tripled in most of the nursing programs sponsored by the public system of community and technical colleges in the Twin Cities area. The resulting glut of nursing school graduates has given employers a great deal of leverage to downgrade conditions of employment.

Because it's relatively easy for a supervisor to find deficiencies in the performance of an inexperienced nurse, many supervisors build a case for disciplinary action on the basis of an initial performance evaluation, which provides a handy pretext to fire without just cause.

Issues that have long motivated licensed nurses to get themselves organized into unions include pressure to work over-time off-the-clock, pressure to do hazardous duties in a hurried or improper fashion, being instructed to falsify medical records, selective enforcement of work rules, unfair performance evaluations and disciplinary actions, low pay, etc.

But nursing home owners have generally been successful in pressing their claim that licensed practical nurses are statutory supervisors. On this basis, the employers have challenged the right of licensed practical nurses, as well registered nurses who hold non-supervisory positions, to organize and take concerted action to improve their conditions of employment at nursing homes. The National Labor Relations Board and appellate courts often side with the employer on this issue.

However, the Minnesota Board of Nursing currently interprets language in the Nurse Practice Act to mean that Licensed Practical Nurses may not be delegated any authority or responsibility for the management of health care personnel, inclusive of supervisory functions. An LPN may be disciplined for assuming the role of a supervisor, up to and including license revocation, because it exceeds an LPN's scope of practice as defined by the Nurse Practice Act.

Recently, the administration at one non-profit, non-union nursing home has taken steps to cut operating costs which have created a great deal of discontent within the ranks of the licensed nursing staff. For example, the management threatened collective punishment if the amount of unscheduled overtime paid to licensed nurses didn't go down: a cut in scheduled hours for licensed nurses.

Of course, one would think that the effect of cutting scheduled hours without a reduction of the workload would be a greater quantity of unscheduled overtime. The money saved by cutting scheduled hours would be offset by an increase in unscheduled over-time.

But many employers have cut scheduled hours for licensed nurses without paying a penny more for work performed outside of scheduled shifts. This is accomplished by applying pressure on licensed nurses to work faster, and to work unscheduled over-time off-the-clock.

The method used to pressure licensed nurses to work unscheduled over-time off-the clock is to selectively enforce a policy which requires employees to obtain written authorization to work unscheduled over-time. By citing this violation of company policy and arguing that such conduct meets the criteria for "employee misconduct," employers usually prevail when contesting claims for unemployment insurance benefits, and in court against complaints of wrongful discharge.

Yet, even if a nurse obtains documentation that the employer refuses to authorize overtime, disciplinary action may be taken against a nurse for failing to complete assigned work. This can lead to disciplinary action by the Board of Nursing. Nurses may also be held liable for any harm that comes to a patient as a result of any neglected task.

Employers can also fire someone for poor job performance by making the claim that an employee is working an "excessive" amount of over-time. If the amount of over-time paid for unscheduled overtime hours is well above average for a particular job classification, the employer usually prevails on this issue in administrative hearings and in the courts. This will tend to be the case for licensed nurses who generally work unscheduled over-time on-the-clock in a situation where others work unscheduled over-time off-the-clock.

A union can make a big difference by providing a certain degree of protection to its members against victimization for making concerted efforts to improve conditions of employment. But union organizing drives often fizzle out in their early stages.

When a small group of workers gets together with a union organizer to consider whether to launch a union organizing drive, they are advised to run some avoidable risks to quickly bring about an election to certify the union as their bargaining agent. Efforts to organize often go no further than that.

When union organizing drives get to the point of forcing the employers to allow an election to certify a union as the workers' bargaining agent, a majority of workers often do not vote for the union. If the union is voted in, the workers often fail to compel their employer to recognize the union and sign a contract.

One reason for the high failure rate of union organizing drives is a strategy of reliance on the government to protect the right of workers to organize. Aside from complaints filed with the National Labor Relations Board, very little attention is given to measures that would counter-act the employers efforts to intimidate and victimize union supporters. It commonly takes a couple of years or more for the NLRB to review a complaint and make a ruling. The employers often prevail in this process because they utilize tactics to victimize workers which obscure the issue of why a firing or lesser disciplinary action was actually taken, or can plausibly deny that other types of unfair practices were carried out (i.e. various types of harassment). Unfair labor practices are often carried out by employers without any effort to shield themselves from NLRB action, because the penalties imposed on the employers are not very substantial. The victimized worker who receives a favorable ruling from the NLRB gets nothing more than income directly lost due to the employers action, such as lost wages minus any income received from a new job, unemployment benefits, welfare payments, food stamps, etc.

Several year ago, the Minnesota legislature created a blacklist for nursing assistants by setting up a registry for them. It's not hard for a supervisor to find fault with the patient care that a nursing assistant provides. It just takes a little documentation to fire trouble-makers and knock them off the registry.

It is also not unheard of for a nursing home management to go as far as to nuke its work force to keep a union out, force a union out, or house-break a union it can't get rid of. The cost of aggressively weeding out suspected trouble-makers can be enormous, but Minnesota's legislature is willing to share the financial burden.

The right to organize is sufficiently restricted, and hazardous to exercise, that it is helpful to consider how efforts to organize a union may be carried out when unions have an illegal or semi-legal status. On-the-job activity must be carried out with greater caution and outside agitators should play a bigger role than is generally the case.

A step that should be considered is the creation of a permanent support committee for unorganized nursing home workers who want to get their work sites organized. It could involve anyone with a motive to participate, especially nursing home workers who already belong to a union, non-union nursing home workers, nursing home residents and their friends and family, and nursing students.

There are a number of things a support committee could do to facilitate union advocacy and organization at a job site where organized union sympathizers are not willing to openly engage in union activity on-the-job. Examples include: the production and distribution of a newsletter, informational leafleting, picketing, meetings to demonstrate and mobilize public support, fund-raising, direct aid to victimized union activists, outreach work, etc. Once a critical mass of organized support for a union is achieved, and the need for conspiratorial methods of organization outgrown, a support committee could continue to supplement on-the-job activities. Even one and only one person working in a non-union facility could be active in a campaign to organize that facility for a prolonged time-period in conjunction with such a campaign to organize the whole industry.

Established unions in the nursing home industry do not mobilize the type of support necessary to organize the unorganized because the effort would require a radical change in the union officialdom's mode of operation. An aggressive campaign to organize the entire nursing home industry would frighten and antagonize the owners of unionized facilities and "friends of labor" in the Democratic and Republican Parties.