A Chicago federal judge has ordered Advocate Health to recognize and bargain with a union representing more than 140 advanced practice nurses who staff the former Take Care Health clinics Advocate now operates inside Chicago area Walgreens stores, saying he believes the ex-Take Care Health APNs should be counted separately from the more than 200 APNs Advocate already employed at its other walk-in clinics for the purposes of collective bargaining.
On Aug. 11, U.S. District Judge John Z. Lee sided with the National Labor Relations Board, which had itself sided with labor union, the Illinois Nurses Association, in requesting a court order barring Advocate from “engaging in unfair labor practices” and “ordering Advocate to bargain with the Union in good faith” while the company and union await a final decision from the NLRB as to whether Advocate’s purchase of the clinics also brought with it an obligation to recognize and bargain with the union.
The dispute dates back to 2015, when Advocate, the largest hospital system in Illinois, purchased the Take Care Health clinics which had allowed patients access to health care on a walk-in basis. The clinics were staffed by APNs.
Since 2011, the APNs working at those clinics had been represented by the Illinois Nurses Association.
After purchasing the clinics, Advocate fired all the APNs, and rehired about 140 of them to again work in those same clinics. However, Advocate also informed the nurses it would not recognize the INA as their authorized collective bargaining representative.
This decision prompted the union in June 2016 to complain to the NLRB. An administrative law judge with the NLRB conducted hearings on the union’s unfair labor practices complaints, but has yet to rule on the matter. The ALJ, however, explicitly refused to dismiss the complaint.
In the meantime, in February 2017, the director of the NLRB sued in federal court, asking Judge Lee to order Advocate to recognize the union.
In court, Advocate argued it should not be forced to recognize the union, in part, because it believes a majority of its now 350 total APNs has not endorsed union representation. According to the judge’s opinion, Advocate argued the 140 APNs which worked at the clinics inside Walgreens should not be considered separate or distinct from the larger number of APNs Advocate already employed at its other health care facilities.
Advocate, for instance, argued the ex-Take Care Health APNs “share common supervisors, receive similar safety training, are subject to the same compensation and employment practices and wear the same Advocate-branded lab coats,” and have “similar job responsibilities.”
Judge Lee, however, rejected Advocat’s arguments, saying he believed the evidence indicated the ex-Take Care Health APNs “form a community of interest that sets them apart from the other APNs” employed by Advocate.
He noted the ex-Take Care APNs “work in locations that are separate from the other APNs” and “had distinct job responsibilities and training as compared to Advocate’s other APNs,” having never been trained to work in Advocate’s hospitals or physician practices.
The judge also brushed aside Advocate’s concern that such a finding would “encourage the undue proliferation of bargaining units in the healthcare industry” by allowing a union to carve out a bargaining unit from “a group of employees in which it lacks majority status.”
Lee said Advocate did not present evidence to back this assertion.
The NLRB director, the judge said, has a “reasonable likelihood of success in proving to the NLRB that there is substantial continuity between the respective business enterprises of Advocate and its predecessor, that the unit of APNs working in the clinics formerly operated by Take Care Health remains an appropriate unit for collective bargaining, and that a majority of the employees working in these clinics were previously employed by Take Care Health.”
Advocate was represented in the action by the firm of Baker & McKenzie LLP, of Chicago.