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Buffalo Nurses’ Successful Strike Highlights Union Divide and Doubts over New Staffing Law

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This story originally appeared in <a href="https://nysfocus.com/2021/11/09/buffalo-nurses-strike-cwa-1199seiu-safe-staffing">New York Focus</a>, a nonprofit news publication investigating power in New York. <a href="https://nysfocus.com/newsletter?utm_source=partner&utm_medium=website" target="_blank">Sign up for their newsletter here</a>.<hr>NEW YORK STATE · November 9, 2021
<h1>Buffalo Nurses’ Successful Strike Highlights Union Divide and Doubts over New Staffing Law</h1>
<h2>The union’s focus on direct action reflects skepticism that an incoming staffing law will significantly increase staffing ratios.</h2>
<h3>By <a class="yellow-underline" href="https://nysfocus.com/author/maxwell-parrott">Maxwell Parrott</a> , New York Focus</h3><figure><img src="https://imgproxy.gridwork.co/xK8P-xjDtqiuvwkbq1guBwEPv0FzqxQzCUX2FHZf8C4/w:820/h:615/rt:fill/g:fp:0.5:0.5/q:90/el:1/aHR0cHM6Ly9zMy51cy1lYXN0LTIuYW1hem9uYXdzLmNvbS9ueXNmb2N1cy9pbWdfNjUyNi1zY2FsZWQuanBlZw.jpeg" alt="" /><figcaption>Unionized nurses picket outside Mercy Hospital in Buffalo, NY. / CWA</figcaption></figure><div>Kathy Kelly is the nurse in charge of a 40-bed cardiovascular unit at Mercy Hospital in Buffalo. It’s an area of the hospital where patients often end up fresh out of heart surgery, hooked up to chest tubes sucking out air and fluids in the space between their lungs and heart. 
The ratio of nurses to patients in her department has fallen as low as one nurse for every nine patients, Kelley told New York Focus—far below the <a href="https://www.nursingworld.org/practice-policy/nurse-staffing/nurse-staffing-advocacy/">American Nursing Association</a>’s recommended standard of no more than two intensive care patients per nurse. 
On Oct. 1, Kelley and about 2,000 other unionized nurses at Mercy Hospital went on strike. The decision came after months of unsuccessful negotiations between hospital management and the Communications Workers of America (CWA), the union which represents nurses at the hospital, and hinged on the proposed contract’s lack of mandated staffing levels. 
On Monday night, CWA workers ratified a <a href="https://www.safestaffingbuffalo.org/safe-staffing-buffalo/news/groundbreaking-tentative-agreement-reached-catholic-health">new four-year agreement with the hospital</a>, formally bringing an end to the month-long strike. The contract includes language that will boost wages for all hospital employees and require staffing ratios for a number of nursing units, including critical care, medical-surgical and ancillary staff. 
Coming just months after New York’s legislature passed a new law designed to increase nurse staffing ratios, the strike reflected the union’s doubt regarding several core elements of the new law—and a split in strategy between different New York unions. 
The law does not authorize the state to mandate staffing ratios in most hospital units, but rather requires hospital management to negotiate with staff each year on staffing levels.  
Representatives of CWA, which represents around 10 hospitals in the state, said that they agreed to that framework as a compromise with Local 1199 of the Service Employees International Union, a powerful union representing more than 200,000 health care workers. 
CWA is concerned that the law is deferential to management and will be difficult to enforce, raising the possibility that it will take more strikes to secure higher staffing ratios in the coming months and years. 
<h4>‘A Missed Opportunity’</h4> 
For more than twenty years, New York nurses and allied state legislators have been calling for improved staffing standards for hospitals and nursing homes, which <a href="https://docs.google.com/document/d/1L9HtRtXji4WJxEbLDNRO6YEh3SrG71nKVuhjNxGomPY/edit?usp=sharing">research</a> shows could improve patient outcomes and decrease mortality rates. 
The effort gained renewed traction as the Covid-19 pandemic filled hospitals past their capacity, <a href="https://publictheater.org/productions/season/1920/the-line/">drawing attention</a> to overburdened nursing staff who were spread thin in critical care units across the state. 
Staffing ratios require a certain number of nurses, which varies by hospital unit, to be on the floor of the hospital at any given moment. New York’s average ratio is about one nurse for six patients, according to a 2020 study by Karen Lasater, an assistant professor with the University of Pennsylvania Nursing Center for Health Outcomes & Policy Research, far below <a href="https://nurse.org/articles/federal-staffing-ratios/">federal recommendations</a>. 
“This is not just an isolated area, like for rural New York. This is a problem across the state,” Lasater told New York Focus, noting that New York City has the highest ratio in the state, with about seven nurses per patient. “Across the board, hospitals—even the smallest hospitals—are still staffing well above what the recommendation is,” Lasater said. 
The state with the highest staffing levels is California, Lasater said, which is the only state with mandated statewide nurse–to-patient ratios. 
Unlike California’s law, the staffing law that New York passed in the spring does not establish state-wide staffing standards, which Lasater considers a “missed opportunity.” 
Instead, the law will require each individual hospital to form a staffing committee — half made up of nurses, half by hospital administrators—that will meet annually to set minimum staffing ratios for different units. If a  committee cannot agree on a set of ratios, hospital management will then adopt a plan of its own devising that it will have to make public and file with the state health department. 
The notable exception to that approach is intensive care units and critical care settings, for which the state health commissioner will be required to create statewide ratios. 
Seven other states have laws similar to New York’s, requiring individual hospitals to set up nursing staffing committees. Lasater said that in her research, she hasn’t found evidence that such laws have led to improved staffing ratios. 
“Those staffing ratios are negotiated between clinical nursing staff and high level executives, who are effectively their employers,” she said. “So it becomes a very lopsided table to sit around.” 
Bill Hammond, a health policy analyst at the Empire Center, a conservative think tank, disagreed. Hammond raised the concern that the minimum ratios would compound nursing shortages. 
“Creating a minimum staffing law adds to that demand. It creates new demand that didn't exist before. It's gonna aggravate shortages, not fix them,” Hammond said. 
Richard Gottfried (D-Manhattan), the chair of the Assembly’s Health Committee, would like to see New York adopt a California-style law.  
He told New York Focus that the <a href="https://legislation.nysenate.gov/pdf/bills/2021/a108">original version</a> of New York’s staffing law, which was introduced to the Health Committee in January, included mandatory statewide minimum staffing ratios.  
But the bill was <a href="https://legislation.nysenate.gov/pdf/bills/2021/a108b">later amended</a>, at the request of New York’s major healthcare unions, to replace the statewide staffing mandates with individual staffing committees at each hospital, he said. This idea for committee-based staffing ratios came from a series of negotiations that three of the major healthcare unions—CWA, 1199SEIU, and the New York State Nurses Association (NYSNA)—held with the Hospital Association of New York State, he said.  
As Gottfried tells it, he agreed to support the plan the unions came up with on their own. 
“The original bill was the right answer, and would be better. But I think we all felt that what was negotiated between the hospitals and labor was enough of a step forward to enact it,” Gottfried said, adding that many legislators were wary of statewide mandates. 
“There were many in the legislature who were reluctant to do something that their local hospital was so strongly objecting to,” he said. 
Although all three unions agreed to the compromise of committee-based staffing, it wasn’t a unanimous decision. 
Bob Master, a top official at CWA and the co-founder of the Working Families Party, told New York Focus that both CWA and NYSNA preferred a California-style law. The main reason they agreed to the compromise, he said, was because they needed to secure the support of 1199SEIU, which has historically been reticent about statewide ratios. 
“We basically acknowledged that if we're gonna move forward, we had to have 1199 on board. They're really the 800-pound gorilla of New York state politics,” he said. 
A spokesperson for 1199SEIU declined to comment. 
Master remains concerned about the limitations of New York’s compromise staffing bill. 
“[The state staffing law] creates a framework in which hospital management and workers have an opportunity to negotiate an agreement around staffing,” he said. “But since it doesn't mandate an outcome, it doesn't have the same power as the state-established staffing ratios that are in regulation, which is what California had.” 
Gustavo Rivera (D-Bronx), the Senate sponsor of the staffing bill, said that he took CWA’s criticism of the bill as a reminder that “there’s still legislation to be done [and] there’s still things that need to be considered to make conditions better for workers and for patients.” 
But Rivera also clarified that he would not be considering legislation concerning statewide ratios until he’s able to gauge the success of the new law, which will take over a year to fully implement. 
<h4>Enforcing the Law</h4> 
At Mercy Hospital, nurses say they have reason to be skeptical when it comes to staffing agreements with management. 
In <a href="https://cwalocals.org/system/files/mercy_buffalo_rn_9-8-2016_to_6-30-2020_1.pdf">a 2016 labor contract</a>, the hospital agreed to hire an additional 45 registered nurses for the floor—the majority in critical care, with some floating nurses. 
However, the contract only called for the hospital to hire a set number of nurses, not to maintain a certain ratio of nurses to patients. When the contract went into effect, the hospital hired the 45 additional nurses in order to meet its commitment. But as time went on, the number of nurses on staff decreased through attrition—and the hospital didn’t replace them through new hires. As a result, Mercy Hospital’s pool of registered nurses is currently the smallest it has been since 2015, according to <a href="https://docs.google.com/spreadsheets/d/1dKIWotx7WjAKbyx2Pj_8mzLO3tprLjJO/edit#gid=1632836036">staffing documents</a>. 
“We had an agreement, a commitment to hire and maintain staff, and the hospital did not follow through on that commitment,” Erin Spaulding, a CWA representative, said. “That's why we [went] on strike.”  
In a statement released after the strike ended, Catholic Health president and CEO Mark Sullivan said that the hospital had “the most progressive approach to address staffing shortages of any hospital in our region.”  
“Not only does it comply fully with the New York State Safe Staffing law set to go into effect in January 2022, but it goes far beyond, adding 250 new positions in the face of a nationwide staffing shortage,” he added. 
One of CWA’s primary demands for its new contract was the inclusion of specific staffing ratios, which would prevent the hospital from letting the staffing numbers shrink over time.  
The new staffing law is also supposed to prevent that, but Spaulding suggested that the state legislation would be harder to enforce than a union contract. 
Under the language of the staffing law, the state health department will play a large role in determining its ultimate success. The law relies on the department to investigate and crack down on violations—another element that is cause for skepticism from some quarters. 
“I think that for the Department of Health to exclusively enforce this ratio is not necessarily realistic—just given what as a union rep we deal with every day with staffing challenges in the hospitals and the kind of relief that people are looking for quickly,” Spaulding said. 
Stephanie Luce, a CUNY labor studies professor, agreed that labor laws often go poorly enforced by state agencies.  
“We know in general that relying on the state alone to enforce labor laws is always problematic. A lot falls through the cracks,” Luce said, pointing to gaps in the state’s enforcement over <a href="https://nysfocus.com/2021/06/10/wage-theft-prevention/">wage theft</a> and the minimum wage as examples. 
NYSNA, which has maintained a more optimistic view of the law since its passage than CWA has, is hopeful that the law will provide unions with leverage in negotiations over labor contracts. 
“We think it augments collective bargaining, and they will have a symbiotic relationship, where in our opinion, we get multiple bites of the apple on our core issue — our number one issue — every year, as opposed to once every three to four years,” said NYSNA field director Eric Smith, referring to the annual meetings over staffing ratios mandated by the law.  
Smith added that the several of its hospitals in New York City, like Montefiore, Mount Sinai and New York Presbyterian, which already have ratios in their labor contract, have successfully been able to use a complaint and mediation procedure to increase staffing levels. 
The incremental improvements at the large hospitals that Smith pointed to stand in stark contrast to the state of play at Mercy Hospital, which had no enforceable ratio in its contract. That could help explain CWA’s focus on direct action; unlike NYSNA, none of the New York hospitals represented by CWA currently have enforceable ratios. 
The future of labor relations among nurses and hospitals in the state is likely to remain tense, all parties agree. 
 
Smith, the NYSNA field director, did not directly respond when asked if he expected more strikes over the next year, but predicted that the new law could intensify labor fights over staffing. 
“Trust me, they will fight it kicking and screaming. We've had to rip them into this paradigm around ratios and we're gonna have to continue fighting them. They do not want to represent a safe number of patients per nurse,” he said.</div>	 
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