Other unions can learn some crucial lessons from the miscounted contract vote among nurses at two Minneapolis hospitals, labor lawyers say.

The episode serves as a wake-up notice of the importance of having well-documented procedures, trained people conducting and counting the vote, and a system of checks and balances, they say. It also points out that what seems like a simple phone call telling an employer the contract is ratified is more than a courtesy call. It can be legally binding.

'The best thing to do is to have good people who are well-trained,' said Roger Jensen, a labor lawyer in St. Paul. 'Have a checklist policy on how to count ballots and what procedure to use, rather than doing things ad hoc.'

Adjourn to a private room, he advises, to minimize distractions. 'Have two people working in teams to double-check each other. Follow the checklist. Do it again if it's a relatively close vote.' Those kinds of procedures can minimize mistakes caused by fatigue, emotion and the pressure of trying to let membership know results quickly, Jensen said. 'You don't want to hurry the process.'

Live with the results. That kind of approach helped the Lakes and Plains Regional Council of Carpenters and Joiners when it ran into a close contract vote last month.

Members rejected a contract by three votes, but five people who voted were determined to be ineligible, leaving the actual results up in the air, said Patrick Bristol, executive secretary-treasurer of the council.

Unlike the nurses' vote, however, the Carpenters' initial count rejected the contract, which made it easier to hold a second vote, Bristol said. Whatever you do, don't announce the results until you're sure, he said, and once you do announce results, live with them. Don't conduct a recount.

'After you've given notice of ratification, it's a done deal,' he said. 'A recount is a moot point.'

Notice is significant
Giving notice makes big difference. Announcing a result that turned out not to be accurate, then conducting a recount after notifying Allina Health Systems are what backed the nurses into a corner.

'It's none of the employer's business how we go through the ratification process - or even if we go through a process,' said a second Twin Cities labor lawyer, who asked not to be identified. 'But the price of that freedom from inquiry is that if we tell them we've reached an agreement, they can count on it. That verbal statement has great legal significance.'

That verbal notification carries more legal weight in labor law than it does in the regular business world, he said, which is why Allina was able to take a hardline position and refuse to allow the nurses to have a second vote.

'If I had a three-year, multimillion dollar commercial contract, I'd have a heckuva hard time enforcing it without something in writing,' he said.

But because the nurses union had what's known as 'reasonable authority,' Allina could take the legal position that a contract was in place, even if it had not been signed.

Differing degrees of risk
Jensen says he questions what the ramifications would have been if the nurses conducted a second vote for the two Allina hospitals, even if they rejected the contract and went on strike.

'It's probably one of those questions where if you ask half a dozen different lawyers, you'll get half a dozen different answers,' Jensen said. 'But I don't think they had unfair labor practice exposure.

'To have a vote, miscalculate the vote, and notify management in a timely manner, it's a difference of night and day in my opinion.'

While saying 'I don't want to second-guess their decision,' Jensen said he believes that, at worst, the nurses would have had to file another formal 10-day notice of their intent to strike.

The other labor lawyer, however, said the risk for the nurses was real. 'If you have a no-strike clause in your contract, then any strike is illegal.'

Although a second vote might seem to be the fair or logical thing to do, any union would face 'an uphill fight to make new law or make a new exception based on these facts,' he said. 'If you fail, the stakes are so high.

'If you are in violation of what the (NLRB) or the courts find to be a viable no-strike clause, the employees are at a very severe risk of discipline and the union is at an extremely severe risk of liability. You can be handing the employer a real union-busting opportunity.'

This article was written for the June 20 issue of The Union Advocate newspaper. Used by permission. The Union Advocate is the official publication of the St. Paul Trades and Labor Assembly. E-mail The Advocate at: advocate@mtn.org