Nearly two decades ago, 23 nurses in Minneapolis walked off the job to protest what they saw as their employer’s attempt to cut off their health benefits. They never came back to work.
Four years later, the National Labor Relations Board (NLRB) issued a decision that overturned a previous ruling and found the clinic where they worked was allowed to fire them because they had moved their strike back by four hours to ensure their patients were taken care of.
The case has fresh relevance now because of the one of the board members who wrote a concurrence in the decision: Alexander Acosta. President Trump has picked him to lead the Department of Labor, the government agency focused solely on protecting the rights of working Americans. Trump’s first selection, fast food CEO Andrew Puzder, withdrew from consideration.
Those who were involved in the case decades ago say Acosta’s actions in 2003 unfairly cost these nurses their jobs and set a precedent for all health care workers who go on strike. That could be troubling for American workers who look to an agency potentially run by Acosta to protect their rights.
“It still upsets me to this day,” said Gregg Corwin, the lawyer who represented the nurses in the case.
Neither Acosta nor the White House responded to requests for comment.
The nurses at the Alexandria Clinic in Minnesota were not highly compensated health care employees. “It’s not a big city, it’s pretty rustic up there,” Corwin said. “These nurses [were] mostly single parents… earning eight or nine dollars an hour, didn’t make a lot of money.”
The nurses had only won union representation the year before, in 1998. After several meetings to negotiate a contract, though, the nurses rejected a final contract offer from the clinic in August 1999, which increased the number of hours they would be required to work in order to get full benefits, threatening to demote many of them to part-time status.
“I’d never dealt with such bull-headed people in my whole life,” Jo Radil, one of the striking nurses, told Minnesota Public Radio in 2001. “If you’re making $8 an hour, you’re paying daycare, you know you have to pay your health care benefit, you don’t come home with a thing, you know if anything you’ll probably owe the clinic; that was one of the biggies — the health care benefits.”
They voted to go on strike in protest, but it was a tough decision. “It was a very long process, and it was not one that we took lightly,” Joyce Iverson, another striking nurse, told Minnesota Public Radio in 2004. “It was discussed for a long time. We went right to the final hour, where people were going to doctors saying, ‘Please, can’t you talk to somebody, can’t you stop this?’”
Labor law requires that people who work in health care give their employer at least 10 days’ notice of a strike. It’s meant to ensure that patients aren’t harmed and gives an employer enough time to line up any temporary employees to make sure care isn’t interrupted. The nurses complied with this requirement, alerting the clinic that the strike would commence at 8 a.m. on September 10.
But they later pushed the strike back by four hours, to noon the same day. “What they wanted to do was take care of all the patient loads,” Corwin said. “They were doing their jobs and caring for their patients and protecting their patients. They didn’t want the strike to have a deleterious effect.” Then they would strike after the patients were all cared for.
“It was not a tactic or anything,” Corwin added. “They were genuinely concerned about the patients.”
The clinic already had temporary workers to replace the striking nurses ready to go, who sat in a lounge area while the employees finished up their rounds. Then at noon, 13 of the nurses who had reported to work walked outside to picket (eight others didn’t show up to the clinic that day). The replacement nurses stepped in.
No care was disrupted. Yet the clinic sent the union a letter afterward saying that by delaying the strike and not telling their employers, the nurses had violated labor law and that it was firing all of them. It hired new nurses to replace them.
In 2000, NLRB Administrative Law Judge John H. West found in the nurses’ favor, saying that they shouldn’t have been fired. West relied on the 1979 case of Greater New Orleans Artificial Kidney Center in which the NLRB held that the law for health care employees still allowed extending a strike time, so long as it wasn’t delayed more than 72 hours. West found that the nurses were in compliance with the law because the “strike and picketing began within a reasonable time after the scheduled time.”
The nurses thought the dispute was over and they would go back to their jobs, but the clinic appealed the ruling.
Still, Corwin said, “We were very confident that we would win based on precedent.”
But the case came before the NLRB again just after President George W. Bush had appointed a Republican majority on the board, including Acosta. The board reversed the prior judge’s decision, finding that the union wasn’t in strict compliance with the law and therefore allowing the clinic to fire the nurses, who had been in limbo for four years.
Acosta wrote his own concurrence in the case. “In my view, the language of the statute is clear and mandates this result,” he wrote. He explicitly disagreed with the precedent set in the 1979 case, in which the members had said the law didn’t need to be “rigidly applied,” and argued instead that “the statutory language is unambiguous.”
He also warned that without a strict interpretation, employers could be “forced to expend time and resources preparing for a strike that could be rescheduled, late in the day,” and that this decision would instead guarantee them “sufficient advance notice of any picketing or work stoppage to enable them to take necessary steps to provide for continuity of care.”
But that’s not what happened when the nurses went on strike. Indeed, two NLRB members dissented on the decision by pointing out, “Alerted by the notice, their employer, a health clinic, had replacement nurses waiting, and patient care was unaffected.”
Some think that Acosta’s decision and the NLRB ruling was fair. “That was very straightforward,” said Michael Duff, a law professor at the University of Wyoming Law who worked as an attorney at the NLRB for nine years. He argued that the rule governing strike notice itself, which only applies to the health care industry, is “nonsense.” But, he added, “There had been some board precedent that said… you can relax that deadline, but it’s a fair reading of the statute.”
But Corwin was shocked that the board ignored the New Orleans precedent and, not only that, applied the finding retroactively to the nurses he represented, rather than just saying it would apply to workers moving forward.
And it was devastating to the nurses. They had technically remained on strike between 1999 and 2003, forgoing pay and benefits from the clinic. Some had to move on to other jobs, although there were those who wanted to go back to work at the clinic.
“It was terrible,” Corwin recalled. “There aren’t a lot of jobs up there, especially nursing jobs. I don’t know how many got nursing jobs, how many got other jobs. But… I’m sure a lot of them suffered severe economic hardship.”
And the union was essentially stymied at that point. “They wanted to kick the union out,” Corwin said. “They basically broke the strike.”
The case didn’t just impact this group of nurses, though. It also now means that any health care employees who want to exercise their right to strike have to be extremely cautious about giving notice. “It’s a well known case,” Corwin said, which means “when you give a strike notice you have to walk out at exactly the time you put in the notice.”
Scott Kleckner, who was the union representative for the nurses at the time, agreed. “Acosta was in the majority in a decision by a split NLRB that overturned [a prior] decision and really created some new precedent about the timing of a strike in the health care industry,” he said in an email.
They weren’t the only ones taken aback by the decision. In a 2006 report authored by former Rep. George Miller (D-CA)’s office, the case was included in a section titled “The Gotcha Game.” It stated, “While the Bush Board has often seen fit to give employers a great deal of leeway… the Bush Board has rarely, if ever, seen fit to give unions or workers any breaks.” The Alexandria case was the first example cited.
Corwin warns that the case bodes poorly for workers if Acosta becomes the new secretary of labor. “It just shows where his viewpoints are,” he said. “This is someone who didn’t care about following precedent and someone who didn’t care about going after these poor workers. It certainly shows a lack of sympathy or understanding for the working people.”
“You have someone here who really doesn’t care about the employees supposedly he’s there to protect,” he added.
Alan Pyke contributed to the reporting of this article.