Words are powerful tools for advocates of personal rights. Abraham Lincoln and Martin Luther King, Jr., are examples of people who used them well-by making their words clear to everyone, their messages became effective tools for change.
"If words are not carefully chosen or well understood, their message holds little meaning to very few. As the noise regarding workplace issues rises to a mind-numbing din, nurses need clear, meaningful messages," says Anna Atteberry, MSN-S, BSN, RN, a member of the South Dakota Nurses Association and a staff nurse at the Gregory Healthcare Center in Gregory, South Dakota. "Before determining how workplace advocacy strategies can be used by nurses, we must be clear about what these words mean."
Atteberry, who sits on the ANA's Commission on Workplace Advocacy, says workplace advocacy empowers nurses to solve issues in their own practice settings. In addition to addressing issues such as practice and occupational health and safety, advocacy can be applied to education, professional development, and legal concerns. "I can't stress enough the importance of using workplace advocacy strategies in professional nursing practice," says Atteberry. "Often these activities include the resources and strength of a national professional association like the ANA and its 54 constituent member associations."
Violence, ethical dilemmas, mandatory overtime, and environmental and ergonomic risks also concern other professions. By forming new alliances and partnerships, a larger pool of strategies can be created to address these issues.
A NEW NEGOTIATING TOOL
A strong economy, technological advances, and workplace restructuring have changed how employers and employees negotiate. For example, many rights that were previously only available to unionized employees are now found in nonunionized work settings.
In July 2000, the National Labor Relations Board (NLRB) decided to expand such a right. In its decision, entitled Epilepsy Foundation of Northeast Ohio (331 NLRB 92 [2000]), the NLRB reversed a longstanding precedent by determining that employees not represented by a union have the right to have a coworker present at an investigatory interview that the employee reasonably believes could result in disciplinary action.
The decision came as a result of a charge of unlawful dismissal brought in front of the NLRB by Arnis Borgs and Ashrafel Hasan against their former employer, the Epilepsy Foundation of Northeast Ohio. Borgs and Hasan, who worked together on a school-to-work transition program for teens with epilepsy, had ongoing problems with their supervisor. Together, they penned a letter to him, sending a copy to the executive director of the agency, stating they no longer required his supervision. Days later, in a memo addressed directly to the executive director, the two criticized the supervisor's involvement in the program and cited examples in which he had acted inappropriately. Soon after the memos were written, the supervisor and executive director requested a meeting with Borgs. He asked that Hasan attend this meeting, but the request was denied. When he continued to express his opposition to meeting alone with the supervisor and executive director, Borgs was sent home and fired the next day for gross insubordination. (Hasan was terminated nearly two months later.)
Borgs appealed to the NLRB. The judge who heard the case found that Borgs had been discharged for "his persistent refusal to comply with [the executive director's] directive to meet alone with her and [the supervisor]." The judge noted that under the U.S. Supreme Court's 1975 case NLRB v. J. Weingarten (420 U.S. 251), employees in unionized work settings are entitled to representation in an investigatory interview that the employee reasonably believes could result in disciplinary action, but under NLRB precedent, employees in nonunionized workplaces didn't have the same right.
Accordingly, the judge found that Borgs had no statutory right to condition his attendance at the meeting on the presence of Hasan.
After considering the case, however, the NLRB reversed the judge and overruled its precedent, finding that the employer's termination of Borgs for his attempts to have a coworker present at the meeting was unlawful. The NLRB's decision recognized that "the right to the presence of a representative is grounded in the rationale that the [National Labor Relations] Act generally affords employees the opportunity to act together to address the issue of an employer's practice of imposing unjust punishment on employees."
The NLRB held that "the ability to avail oneself of this protection doesn't depend on whether the employees are represented by a union." This decision is consistent with the growing trend of recognizing and acknowledging individual rights in the work setting.
USING THE LAW
Workplace protections for nurses also exist at the state level. For example, Texas has both a state whistleblower law and a whistleblower clause in the state nurse practice act. These provided the legal defense for emergency department nurse Stephanie Hohman, RN. Her employer, the University of Texas Medical Branch, retaliated against her when she witnessed the trauma team forcing unnecessary treatments on patients and reported her concerns to the Board of Nurse Examiners. During her trial, the Texas Nurses Association (TNA) testified to an RN's duty to report potential harm to patients as well as to her rights under the whistleblower laws. As a result of this support, and because Hohman documented her acts and subsequent treatment, she won the case and received back wages, compensatory damages, and coverage of incurred legal fees.
Sometimes, legislation doesn't need to become law to be used as an effective workplace advocacy strategy. For example, in New Jersey, mandatory overtime legislation "brought agreement among a number of health care groups that are often opposing or competing with each other," according to Andrea Aughenbaugh, RN, CS, CAE, chief executive officer of the New Jersey State Nurses Association (NJSNA). "The NJSNA, the Patient First coalition (consisting of health care worker unions), the Organization of Nurse Executives of New Jersey, and the New Jersey Hospital Association all agreed that a safety issue existed and needed to be addressed by the government. Further, the publicity regarding this legislation and the governor's conditional veto prompted facilities to voluntarily examine their policies and make changes."
PARTNERSHIP POWER
The examples in Texas and New Jersey illustrate a key strategy in workplace advocacy-using the power of nursing organizations and broad coalitions to maximize workplace protections.
"Membership in your state nurses association supports the creation of meaningful advocacy strategies, for you, the nurse, and ultimately the consumers, our patients," notes Clair Jordan, MSN, RN, executive director of the TNA and chair of the ANA's Commission on Workplace Advocacy. "To make workplace advocacy work for you and to secure a better workplace, learn more about the growing treasure trove of resources in your state and enjoy a ready-made source of professional partners."
For more information about the ANA's workplace advocacy activities, contact Patty Franklin at [email protected] or call (202) 651-7047. To join your state nurses association, go tohttp://www.nursingworld.orgor call (800) 274-4ANA.
Employee Representatives: When the Time Is Right
The following are rules that govern employees' right to bring a representative with them into investigatory meetings:
* The right arises only when the employee requests the presence of a coworker.
* If the employee requests representation, the employer can't insist on questioning the employee without a coworker present. Moreover, the employer can't discipline the employee for making the request or for refusing to participate in the interview without the presence of the coworker. If an employee is discharged or otherwise disciplined for asserting his or her rights, the employer can be ordered to reinstate the employee and provide back pay.
* Employees can request representation only in situations they reasonably believe will result in disciplinary action.
* The employer has no obligation to justify its refusal to allow representation at the interview. Employers are free to carry on their inquiry without meeting with the employee.
* Employees can't insist on coworker representatives who are absent at the time of the meeting and can't bring in attorneys or nonemployees. As long as there is another coworker available to accompany the employee, the meeting need not be postponed.
* Representatives can't engage in a debate with investigators or tell the employee not to answer a question.