BILL NUMBER: AB 1201 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2007
INTRODUCED BY Assembly Member Leno
FEBRUARY 23, 2007
An act to add Chapter 1.5 (commencing with Section 950) to Part 3
of Division 2 of the Labor Code, relating to collective bargaining.
LEGISLATIVE COUNSEL'S DIGEST
AB 1201, as amended, Leno. Collective bargaining: direct care
registered nurses.
Existing law provides that the employees of various industries
have the right to organize for the purpose of collectively
negotiating the terms and conditions of their employment.
This bill would give direct care registered nurses, as defined,
the right to organize, form, or join a union, and to bargain
collectively through chosen representatives with a health care
employer. The bill would further require a health care employer
other than the state, the University of California, and other public
agencies to recognize a direct care registered nurse bargaining
unit if a majority of the registered nurses in that unit desire the
representation. In addition, the bill would provide for the
implementation of an agency shop arrangement between a health care
employer and a direct care registered nurse bargaining unit that
requires a registered nurse employed by the health care employer
either to join the bargaining unit or pay the bargaining unit a
service fee.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature hereby finds and declares all of
the following:
(1) The institutional force of health care facilities and medical
group providers has turned against the interests of patients and
health care consumers as a result of the managed care reordering of
economic priorities and incentives. As a consequence, licensed direct
care registered nurses are the only potentially effective means for
assuring the provision of safe health care services for patients.
(2) Collegial cooperation and collective activity, including
collective bargaining over terms and conditions of work and practice
for direct care registered nurses, are essential to the effective
exercise of patient advocacy responsibilities.
(3) In recent years, the federal courts and the National Labor
Relations Board have issued various decisions addressing whether
clinical supervision responsibilities that require the exercise of
independent judgment by direct care registered nurses in assigning
and directing clinical tasks performed by other employees require
statutory supervisor exclusion from coverage and protection under the
National Labor Relations Act. This application has been based on a
blanket rule that direct care registered nurse clinical supervision
duties can never be performed in the interests of patients but must,
as a matter of law, always be considered as being performed in the
interests of the employer.
(4) Direct care registered nurses licensed in California are
required to strictly comply with independent fiduciary
responsibilities to provide patient care exclusively in the interests
of patients and the additional independent professional
responsibility of patient advocacy. Full and meaningful compliance
with these duties and responsibilities is essential to the public
health and safety of California residents because current managed
care-determined health care provider patient care methods are
inherently adverse to the interests of patients.
(5) The exclusion of direct care registered nurses from the rights
and protections of the National Labor Relations Act, and the
necessary legal consequence that direct care registered nurses must
have undivided loyalty to their employers' interests as a condition
of employment, are fundamentally in conflict with the essential
principles of professional responsibility and practice of
California-licensed direct care registered nurses.
(6) It is the policy of this state, in the interests of protecting
the health and safety of the people of California, that direct care
registered nurses, in performing their essential functions and
discharging their professional responsibilities as provided under
California law, do so exclusively in the interests of patients.
(7) The actions of the federal courts and the National Labor
Relations Board in denying direct care registered nurses the right to
organize; to form, join, or assist labor organizations; to bargain
collectively through representatives of their own choosing; to engage
in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to engage in the
practice of collective patient advocacy through collective bargaining
representation present a clear and present danger to the health and
safety of the people of California.
(b) It is the intent of the Legislature that this act expressly
authorize collective bargaining by direct care registered nurses in
this state in order to protect the health and safety of the people
and to prevent a cataclysmic health care crisis threatened by the
National Labor Relations Board's forfeiture of collective organizing
and bargaining rights for direct care registered nurses.
SEC. 2. Chapter 1.5 (commencing with Section 950) is added to Part
3 of Division 2 of the Labor Code, to read:
CHAPTER 1.5. DIRECT CARE REGISTERED NURSES COLLECTIVE
BARGAINING
950. As used in this chapter:
(a) "Direct care registered nurse" means a registered nurse duly
licensed in the State of California and employed by a health
care employer in a position with responsibility to provide direct
nursing care to assigned patients. to practice
registered nursing in the state who has direct patient care
responsibility, whose job duties and professional responsibility are
mandated by law, including Article 2 (commencing with Section 2725)
of Chapter 6 of Division 2 of the Business and Professions Code and
regulations of the Board of Registered Nursing, including the
standards of competent registered nursing practice set
forth in Section 1443.5 of Title 16 of the California Code of
Regulations, the standards for disciplining registered nurses set
forth in Sections 1442 and 1443 of Title 16 of the California Code of
Regulations, and the professional practice advisories of the Board
of Registered Nursing, and who is employed in a health facility that
is subject to health facility licensing laws, including Sections
1250, 1253, 1256, 1276.4, and 1277 of the Health and Safety Code, and
subject t o the regulations governing health facilities
set forth in Sections 70005, 70011, 70016.1, 70041, 70053.2, 70101,
70103, 70211, 70213, 70215, and 70217 of Title 22 of the California
Code of Regulations, except that "direct care registered nurse" does
not include an employee of the state or its counties, cities, cities
and counties, special districts, any other public agency, as defined
in subdivision (c) of Section 3501 of the Government Code, or the
University of California.
(b) "Health care employer" means an employer of direct care
registered nurses , except that "health care employer" does not
include the state or its counties, cities, cities and counties,
special districts, any other public agency, as defined in subdivision
(c) of Section 3501 of the Government Code, or the University of
California .
951. Direct care registered nurses have the right to organize; to
form, join, or assist labor organizations; to bargain collectively
through representatives of their own choosing; and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
952. (a) A health care employer shall grant exclusive or majority
recognition to an employee organization consisting of direct care
registered nurses based on a signed petition, authorization cards, or
union membership cards showing that a majority of the registered
nurses employed by the health care employer desire representation by
the employee organization, unless another employee organization has
been lawfully recognized previously as the exclusive or majority
representative of all or part of the same group of employees.
(b) Exclusive or majority representation shall be determined by a
neutral third party selected by the health care employer and the
employee organization who shall review the signed petition,
authorization cards, or union membership cards to verify the
exclusive or majority status of the employee organization. If the
health care employer and the employee organization cannot agree on a
neutral third party, the State Mediation and Conciliation Service of
the Department of Industrial Relations shall be the neutral third
party.
(c) If the neutral third party determines, based on a signed
petition, authorization cards, or union membership cards, that a
second employee organization has the support of at least 30 percent
of the employees in the unit in which recognition is sought, the
neutral third party shall order an election to establish which
employee organization, if any, has majority status. The election
shall be conducted under the supervision of the State Mediation and
Conciliation Service of the Department of Industrial Relations under
such rules as the service may adopt for this purpose, or under
procedures adopted by mutual agreement of the parties to the election
which are not inconsistent with the purposes of this section.
(d) Any dispute over the appropriateness of a unit of
representation for direct care registered nurses shall be submitted
to the State Mediation and Conciliation Service of the Department of
Industrial Relations for mediation. If the dispute is not resolved in
mediation, it shall be submitted for final and binding neutral
arbitration under rules the State Mediation and Conciliation Service
may adopt for this purpose, or under procedures adopted by mutual
agreement of the parties to the election which are not inconsistent
with the purposes of this section.
(e) A health care employer shall not unreasonably withhold
recognition of an employee organization as the exclusive or majority
representative of direct care registered nurses.
953. (a) An employee organization granted exclusive or majority
recognition pursuant to Section 952 shall consist of registered
nurses licensed to practice nursing within this state who (1) have
direct patient care responsibility; (2) have job duties and a
standard of professional responsibility mandated by law, including
under provisions of the Nursing Practice Act (Chapter 6 (commencing
with Section 2700) of Division 2 of the Business and Professions
Code), and under regulations of the California Board of Registered
Nursing, including the standards of competent performance (16 Cal.
Code Regs. 1443.5), provisions authorizing professional discipline of
registered nurses (16 Cal. Code Regs. 1442 and 1443), and Board of
Registered Nursing professional practice advisories; and (3) are
employed in health facilities in California subject to health
facility licensing laws and to regulations of the State Department of
Public Health governing the licensing and operation of health
facilities, including acute care hospitals.
(b) A licensed registered nurse may be included in an employee
organization granted exclusive or majority recognition for
representation of direct care registered nurses pursuant to Section
952 if the primary and essential job function and responsibility of
the nurse is to provide direct nursing care to assigned patients and
the nurse is responsible at all times to furnish nursing care in the
exclusive interests of assigned patients without compromise,
interference, or accommodation as a result of other job duties or
employer directives that serve other interests, including employer
operational, business, or budget interests.
954. (a) As used in this section, "agency shop" means an
arrangement that requires an employee, as a condition of continued
employment, either to join the recognized employee organization or to
pay the organization a service fee in an amount not to exceed the
standard initiation fee, periodic dues, and general assessments of
the organization.
(b) Notwithstanding any other provision of law, an agency shop
agreement may be negotiated between a health care employer and an
employee organization that has been recognized as the exclusive or
majority bargaining representative of direct care registered nurses.
(c) In addition to the negotiation of agency shop agreements
prescribed in subdivision (b), an agency shop arrangement between a
health care employer and an employee organization that has been
recognized as the exclusive or majority bargaining representative of
direct care registered nurses shall be placed in effect, without a
negotiated agreement, upon (1) a signed petition of 30 percent of the
employees in the employee organization requesting an agency shop
arrangement and an election to implement an agency fee arrangement,
and (2) the approval of a majority of employees who cast ballots and
vote in a secret ballot election in favor of the agency shop
arrangement. The election shall be conducted in the manner of a
representation election as provided in Section 952.
(d) A health care employer shall deduct and remit the payment of
dues or service fees to a recognized employee organization as
required by an agency shop arrangement between the recognized
employee organization and the health care employer.
955. Agency fee obligations, including, but not limited to, dues
or agency fee deductions on behalf of a recognized employee
organization, shall continue in effect as long as the employee
organization is the recognized bargaining representative,
notwithstanding the expiration of any agreement between the health
care employer and the recognized employee organization.