Can PAs and NPs Unionize in Urgent Care Settings?

Urgent message: Urgent care’s workforce has changed from primarily emergency physicians to physician assistants and nurse practitioners now making up the bulk of providers. Whereas physicians historically have been excluded from joining a union, recent efforts to organize PAs and NPs have garnered media attention.

While just over 10% of U.S. employees belonged to a union in 2019, a number of groups in industries that do not traditionally have a union presence have gone on strike or organized walkouts since the COVID-19 pandemic began.¹ There’s also been the failure of high-profile attempts to organize employees at such “employee friendly” companies as Amazon and Tesla.² In 2021, the number of wage and salary workers belonging to unions continued to decline (-241,000, to 14 million).³ Among healthcare practitioners and technical occupations, of a base of just over 9 million employees, about a million are union members, or roughly 11%.³

In fact, there have been a number of recent efforts to unionize PAs and NPs in health system ambulatory practices, including urgent care centers. Union organizers point to COVID as the catalyst for physicians and PAs/NPs to organize.¹ For example, the United Physicians Assistants of Michigan Medicine (UPAMM) gained official recognition from the University of Michigan in June 2020 and has been bargaining for their first contract since September. The contract will govern the working conditions for PAs, from how paid time off is earned and redeemed to how raises are allocated to the handling of grievances.⁴

A Conundrum in Urgent Care

Historically, physicians have been unable to organize because they’re not “labor,” but are “professionals.” But as the workforce shifts to PAs and NPs, the question looms—are they “labor” or are they “professionals?”

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards that impact employees in the private sector and in federal, state, and local governments.⁵ Under the FLSA, PAs can be classified as either salaried employees exempt from the protections of FLSA, or hourly (nonexempt) employees who are entitled to overtime of at least time-and-a-half for any hours over 40 worked in one week (or for hospital-employed PAs, 80 hours over two weeks).⁶ Thus, PAs and NPs have the ability to form a union.

What Is Collective Bargaining?

The term collective bargaining means the negotiation of employment terms between an employer and a group of workers.⁷ Employees are typically represented by a labor union during collective bargaining to negotiate working conditions, salaries, and compensation, working hours, and benefits. The objective of the collective bargaining process is to come up with a binding agreement on all terms of employment through a written contract.⁷

Collective bargaining is frequently a long, drawn-out process that can take weeks or even months because the employer and labor union leaders go back and forth with employment terms. The union leaders must update employees and put the terms to a vote. If employees vote to reject a contract, the negotiating process begins again. In addition, employees and employers may have to take time off from work in order to negotiate, which can result in productivity losses.⁷

Also, most employees don’t realize that they can’t be required to become or remain a member of a union as a condition of employment. In Right to Work states,^8,9 an employee’s “right to refrain” means they need not pay union dues or even a reduced “financial core fee” to the union. In other states, however, union dues may still be taken from their paycheck even if they choose not to participate.

What Unionization Means for Employees

For employees, joining a union means they sign away the ability to negotiate with their employer to the union, which can hinder the employer-employee relationship. If there is a conflict, a worker would seek the help of a union steward, rather than their Human Resources department. As a result, employees are not dealing with the company directly but instead are limited to the internal politics and procedures of the union which may or may not take up their cause.

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Likewise, a union’s bylaws may require unyielding allegiance to the “labor movement.” By joining a union, a worker is agreeing to be bound by the union’s internal rules and regulations; moreover, most employees don’t understand that the union’s internal rules and regulations often provide the union with the power to: a) issue monetary fines against employees who don’t toe the union line and b) sue those same employees in state court to collect those fines.^12,13 So, if the union decides it’s beneficial to march at a political rally or donate money to a specific political candidate or interest group, and a union member fails to comply or agree with the action, he or she can be tried in a union court, with possible fines are deducted from their paycheck.

Management’s Role

It’s critical for owners and operators of urgent care centers to understand what actions and behavior are prohibited by employers with regard to employees exercising their rights in organizing, forming, joining, or assisting a labor organization for collective bargaining purposes, from working together to improve terms and conditions of employment, or refraining from any such activity.⁸ This is known as “protected concerted activity.”^14,15

To that end, the National Labor Relations Act (NLRA) forbids employer conduct that violates the law. This includes:

• Threatening employees with the loss of their position or benefits if they join or vote for a union or engage in protected concerted activity
• Threatening to close the office if employees select a union to represent them
• Questioning employees about their union sympathies or activities in situations that tend to interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA
• Promising benefits to employees to discourage their support of a union
• Transferring, laying off, terminating, or assigning employees more difficult work or otherwise punishing employees because they engaged in union or protected concerted activity
• Transferring, laying off, terminating, assigning employees more difficult work or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB⁸

Prohibited Labor Organization Conduct

Note that labor organizations themselves also may not restrain or coerce employees in the exercise of these rights.¹⁶ Some examples of labor organization conduct that violates the law includes the following:

• Threating employees of job loss unless they support the union
• Seeking the suspension, discharge, or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter
• Refusing to process a grievance because an employee has criticized union officials or because they aren’t  a member of the union in states where union security clauses aren’t permitted
• Fining employees who have validly resigned from the union for engaging in protected concerted activities following their resignation or for crossing an unlawful picket line
• Engaging in picket line misconduct (eg, threatening, assaulting, or barring non-strikers from the employer’s premises)
• Striking over issues unrelated to employment terms and conditions or coercively engaging neutrals into a labor dispute

Regardless of what it promises, a union has no ability to offer employees better pay, benefits, or working conditions. That’s because the union is not the employer. It is merely an intermediary between the employee and employer with its own bureaucracy, budget, rules, and procedures.

Union membership looks appealing when employees become dissatisfied with how management treats them and begin to hope the union will make the workplace better. In fact, an organizing campaign typically begins when a small number of disgruntled employees¹⁷ start to influence and turn coworkers against management.

According to the Society for Human Resource Management (SHRM), “while pay and benefits are hot topics in union organizing tactics, employees are most influenced to join a union when the company is perceived to be unfair, unresponsive or offering substandard working conditions to employees. Employers that minimize employee dissatisfaction can also minimize employees’ desire for union representation.”¹⁸

According to SHRM, strategies that help discourage union acceptance are:

• Fair and consistent policies and practices
• Open-door management policies
• Competitive pay and benefits
• Employee trust and recognition

A workplace that fosters good relationships between management and employees and addresses employee concerns is much less likely to force employees to union representation for assistance.

Takeaway

Unions and labor law is a complex subject. Awareness and understanding are crucial, and the best defense is to cultivate a fair and inclusive workplace with a culture that employees find engaging and satisfying. Urgent care owners and operators should consult with an experienced labor law attorney and familiarize themselves with the FLSA, the NLRA, Right to Work, and prohibited employer practices concerning unions.

REFERENCES

1. Abrams A. The challenges posed by COVID-19 pushed many workers to strike. Will the labor movement see sustained interest? Time. January 25, 2021. Available at https://time.com/5928528/frontline-workers-strikes-labor/. Accessed February 13, 2022.
2. DeBord M. The UAW failed to organize Tesla and VW in the US and is now running a baffling strike against GM. Available at: https://www.businessinsider.com/uaw-general-motors-strike-analysis-tesla-and-vw-2019-9. Accessed February 13, 2022.
3. News release. Union Members — 2021. (January 20, 2022). Available at: https://www.bls.gov/news.release/pdf/union2.pdf. Accessed February 13, 2022.
4. Coletti D. physician assistants rally to support union bargaining team. The Michigan Daily. May 4, 202). Available at: https://www.michigandaily.com/news/physician-assistants-rally-to-support-union-bargaining-team/. Accessed February 13, 2022.
5. U.S. Department of Labor – Wage and Hour Division. Wages and the Fair Labor Standards. Available at: https://www.dol.gov/agencies/whd/flsa. Accessed February 13, 2022.
6. American Academy of PAs. PAs and the Fair Labor Standards Act. January 2020. Available at: https://www.aapa.org/advocacy-central/federal-advocacy/pas-and-the-fair-labor-standards-act/. Accessed February 13, 2022.
7. Kenton W. Collective bargaining. Investopedia. Updated February 4, 2020. Available at: https://www.investopedia.com/terms/c/collective-bargaining.asp. Accessed February 13, 2022.
8. Employer/Union Rights and Obligations, NATIONAL LABOR RELATIONS BOARD. Retrieved at https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employer-union-rights-and-obligations.
9. Oas D, Popejoy SL. The Right-to-Work Battle Rages on at Both the Federal and State Levels. 29 MIDWEST L.J. 71 (2019).
10. Conger K. Hundreds of Google employees unionize, culminating years of activism. New York Times. January 4, 2021. Available at: https://www.nytimes.com/2021/01/04/technology/google-employees-union.html. Accessed February 13, 2022.
11. Robb D. IATSE grips Local 80 sued for wrongful termination in alleged cover-up of ‘lewd sexual misconduct’ inside local’s offices. Available at: https://deadline.com/2021/12/iatse-grips-local-sued-wrongful-termination-lewd-sexual-misconduct-inside-locals-offices-1234890353/. Accessed February 13, 2022.
12. Alston Jr RD, Taubman GM. Union discipline and employee rights. National Right to Work Legal Defense and Education Foundation, Inc. Available at: https://www.nrtw.org/union-discipline-and-employee-rights/#N_1_. Accessed February 13, 2022.
13. Fisk CL, Reddy DS. Protection by law, repression by law: bringing labor back into the study of law and social movements. 70 EMORY L.J. 63 (2020).
14. National Labor Relations Board. Concerted activity. Available at: https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity. Accessed February 13, 2022.
15. Thibodeaux C. It’s what you said and how you said it: the NLRB’s attempt to separate employee misconduct from protected activity in General Motors LLC. 82 LA. L. REV. 227. Fall 2021.
16. Hayes MJ. It’s now persuasion, not coercion: why current law on labor protest violates twenty-first century first amendment law. 47 HOFSTRA L. REV. 563. Winter, 2018.
17. Fulmer WE. Step by step through a union campaign. Available at: https://hbr.org/1981/07/step-by-step-through-a-union-campaign. Accessed February 13, 2022.
18. The Society for Human Resource Management. Available at: https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/preventunionorganization.aspx.