As contract talks continue between Twin Cites hospitals and their 12,000 nurses, nurses union leaders have been telling members that if they were to strike it would be an "unfair labor practices" strike.
The union says that would mean the hospitals could not replace strikers permanently -- their jobs would be safe. However, there has been no determination about whether the nurses could lose their jobs to permanent replacements.
On the Minnesota Nurses Association website, the union addresses members' concerns about everything from maintaining health insurance during a strike to handling mortgage payments during a walkout. Perhaps the biggest worry is the potential for the hospitals to replace strikers permanently.
On its website, though, the union responds to that question by saying: "We are calling for a ULP (unfair labor practices) strike so we cannot be replaced and will return to our original positions."
The union has made dozens of allegations the hospitals have engaged in unfair practices. But union has no say in whether a strike qualifies as an unfair labor practices strike -- that decision starts with the National Labor Relations Board.
Marlin Osthus, regional director for the NLRB, said a minority of unfair labor complaints are upheld. And not just any unfair labor complaint that's upheld will protect strikers from being replaced forever. The violations have to be serious, he said.
"Generally, they would be cases alleging bad faith bargaining by the employers. Or cases where the unfair labor practices have a fairly significant impact on a number of unit employees," Osthus said.
The NLRB has not acted yet on the 20-some unfair labor complaints the nurses' union has filed against the hospitals. They include charges of unfair bargaining, harassing union members and blocking them from engaging in protected union activities.
Initial complaint investigations typically take 40 to 60 days. Following those investigations, the NLRB says about two-thirds of all unfair labor practice charges are dismissed or withdrawn.
Osthus said it can take a long, long time to resolve those complaints that make it past initial reviews.
"If somebody chooses to go through the entire process and all of the appeals that are available, it's easily two years," he said. "And it can be quite a bit longer than that."
So, if the nurses were to strike, it could be years before they find out if their jobs were protected.
Union attorney Richard Kaspari is confident they would be. He says the hospitals have committed many serious unfair labor practices.
"If this matter has to be resolved in litigation, the nurses are confident that their June 21st strike vote will be found by the National Labor Relations Board to have been motivated, in large part, by the hospitals illegal conduct during these negotiations," Kaspari said.
Actually, the hospitals have not threatened to replace striking nurses, but Kaspari said it's a question people ask and the union feels it should answer.
Hospitals spokeswoman Maureen Schriner contends the union's unfair labor complaints are unfounded and intended to give the union some leverage.
"It's a union tactic to move toward a contract negotiated in favor of the union," Schriner said.
Anyone can file an unfair labor practice complaint. Complaints can be weak or frivolous, but labor law experts says the union is trying its best to file claims that could stick.
And it doesn't need to have all of them upheld.
"Potentially, they only need one," said Mark Mathison, a labor attorney at Gray Plant Mooty who represents management. He says unfair labor practice charges are a standard weapon for unions.
But there are other arguably more powerful factors that could prevent the hospitals from trying to permanently replace striking nurses, he said.
The public may view nurses more sympathetically than, say, Northwest Airlines mechanics.
"The hospitals have to be mindful of that. That doesn't mean the hospitals have to be intimidated by it," Mathison said. "But they have to assess it."
There are still serious questions about the hospitals' ability to replace striking nurses during an extended walk-out, even when the job market has been softening for recent nursing school graduates.